Reports into Investigatory Powers

Stuart C McDonald Excerpts

Thursday 25th June 2015 Commons Chamber

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

The Scottish National party welcomes the publication of the Anderson report, which, as others have noted, is very thorough, and one can have only admiration for the job David Anderson QC has done. The SNP wants to work constructively with Members of Parliament across the Chamber to make sure that when the new Bill to which the Home Secretary has referred is introduced it takes adequate account of civil liberties and human rights issues.

The SNP recognises the need for law enforcement and security services to have access to the information they require in respect of the threat not just of terrorist offences, but of serious crime, such as the significant evil posed by child sexual exploitation. However, the SNP will always be vigilant to ensure that appropriate safeguards are put in place to balance the need to keep our communities safe with the need to protect civil liberties.

Although we have some concerns about the report’s recommendations, we welcome many of its aspects. We welcome in particular the call for a comprehensive and comprehensible new law to be drafted from scratch, to replace the multitude of current powers and to provide for clear limits and safeguards on any intrusive power that it may be necessary for public authorities to use.

We also very much welcome David Anderson’s recognition of the need for the new law to comply with international human rights standards and to be subject to the visible and demanding safeguards reflecting the central importance of both the European convention on human rights and the Human Rights Act.

We welcome the fact that the report urges much stronger oversight of the activities of the police and security services. We support the recommendation that interception warrants should be granted by judges rather than politicians. That properly reflects the separation of powers between Executive and judiciary, as applies in democratic countries across the world that pay more than lip service to the importance of the rule of law. In that respect, I wish to associate myself with the insightful comments of the shadow Home Secretary and the right hon. and learned Member for Beaconsfield (Mr Grieve).

The SNP also welcomes David Anderson’s recommendation that the Investigatory Powers Tribunal should be able to make declarations of incompatibility under the Human Rights Act and that its rulings should be subject to appeals on points of law.

Finally and most importantly, we welcome David Anderson’s statement that no operational case has yet been made for the compulsory retention of third party data. He has also questioned the lawfulness, intrusiveness and cost of the proposals of the draft Communications Data Bill in 2012. His comments are a serious blow to previous Government attempts to introduce what was in effect a snoopers charter. David Anderson notes that no other European Union or Commonwealth country requires the blanket retention of weblogs and, as the right hon. Member for Sheffield, Hallam (Mr Clegg) has noted, Australia recently prohibited that in law—and for very good reason.

When the report was introduced to the House two weeks ago, the hon. Member for Brighton, Pavilion (Caroline Lucas) noted that both the European Court of Justice and David Anderson have now made it clear that blanket retention of data is unlawful. The SNP hopes that the UK Government will take serious cognisance of that.

The director of Liberty, Shami Chakrabarti, has noted:

“It’s striking that—despite a five-year campaign by the Home Secretary to convince us of its absolute necessity—David Anderson concludes that no operational case for the snooper’s charter has yet been made.”

The SNP hopes that David Anderson’s report will be the death knell for the snoopers charter.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

My hon. and learned Friend, who has enjoyed a distinguished career as a lawyer, has rightly welcomed large parts of Mr Anderson’s report. Does she, like me, but perhaps unlike the right hon. and learned Member for Beaconsfield (Mr Grieve), share the concerns of many lawyers across the UK that the rule of law and, indeed, the proper administration of justice may be undermined if the protection offered by legal professional privilege is not fully respected by investigatory powers legislation?

[Joanna Cherry]

I share that concern and note the comments of the English Bar Council and the English Law Society, and I know that the Scottish Bar, of which I am a member, and the Law Society of Scotland also share concerns that legal professional privilege ought not to be interfered with. It is important to note that insisting on proper protection for legal professional privilege is not special pleading on behalf of lawyers; the privilege is that of the client, rather than the lawyer, and the underlying rationale is the public interest in ensuring the proper administration of justice. I share the concerns of legal bodies in that respect.

I will now to turn to the Scottish angle on these matters. When I spoke in this House on the occasion of the publication of the Anderson report, I asked the Home Secretary to commit fully to engaging with her Scottish Government counterparts in so far as there will be measures in the new Bill that impinge on the devolved competences. Her response was that national security is a reserved matter.

That is simply not good enough. The Bill will touch on issues beyond national security, including particularly serious crime. Crime is a devolved matter and the new Bill will clearly include measures directed against the investigation of serious crime. I and others have already mentioned child sexual exploitation as an important example of that. Much of what is to be covered in the new Bill may impinge on areas of Scots law that are clearly devolved and under the jurisdiction of the Scottish Government or Scotland’s law enforcement agencies, including the Crown Office and Procurator Fiscal Service.

I would like to give the Home Secretary at least two examples of proposals, which, if taken forward, would have implications for Scottish Ministers and Scottish legislation. The first is a return to judicial authorisation of interception warrants on serious crime grounds. At present, interception for the purpose of preventing or detecting serious crime in Scotland is authorised by Scottish Ministers. On the basis of David Anderson’s recommendations, that will, in future, be in the hands of members of the Scottish judiciary.

A second proposal that may have implications for Scotland is the recommendation that the three existing commissioners for interception, surveillance and intelligence services be replaced with a single independent surveillance and intelligence commission. A number of provisions in the Regulation of Investigatory Powers (Scotland) Act 2000 place duties on the Office of Surveillance Commissioners in respect of surveillance and the use of covert human intelligence sources. Any change in that area would almost certainly trigger the requirement for a legislative consent motion from the Scottish Parliament. Accordingly, I hope that the Home Secretary will stand respectfully corrected and now accept that there is a need for her to commit to engaging fully with the Scottish Government, insofar as any legislation introduced later this year and at the beginning of the next year will impinge on the devolved competences.

I mentioned that, although the Scottish National party welcomes the Anderson report, there are areas of concern about its contents. We are particularly disappointed at the suggestion that bulk collection of external communications should continue subject only to what are described as “additional safeguards” and at the recommendation that existing compulsory data retention capabilities under the Data Retention and Investigatory Powers Act 2014 be maintained. The Anderson report offers six agency case studies in an attempt at justifying mass interception. However, as others, including Liberty, have noted, the information in these case studies is vague and limited, so it is impossible to assess whether the security outcomes could have been achieved just as easily by using the wealth of targeted and operation-led intrusive surveillance powers at the agencies’ disposal.

The Scottish National party does not dispute the use and value of targeted and proportional intrusive surveillance. We believe, however, that the mass speculative interception of communications and data retention is unlawful, unnecessary and disproportionate. We are pleased to see that Liberty is currently challenging the lawfulness of mass interception in the European Court of Human Rights and representing Members of this House in their legal challenge to DRIPA.