Oral Answers to Questions

Stuart C McDonald Excerpts

Wednesday 1st February 2023 Commons Chamber

[The Solicitor General]

I am grateful to my hon. Friend for his interest. The Government recognise that the current law does not go far enough. That is why we have committed to addressing the need for a new “failure to prevent” offence in the Economic Crime and Corporate Transparency Bill. In addition, we are introducing a provision to extend the SFO’s pre-investigation powers.

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

9. What discussions she has had with Cabinet colleagues on the potential implications of an order under section 35 of the Scotland Act 1998 for the legislative competence of the Scottish Parliament.

[The Attorney General (Victoria Prentis)]

As I said earlier, by convention, information on whether the Law Officers have been asked to provide advice and the content of such advice are not disclosed outside Government. That convention enables candid legal advice to be given.

[Stuart C. McDonald]

Why was the prospect of a section 35 order not raised at any time before the Gender Recognition Reform (Scotland) Bill was overwhelmingly passed by the Scottish Parliament? What alternatives did the Attorney General look at? When will she set out the changes to the Bill that she wants to see before the Government would revoke the section 35 order? Those are simple questions. If she cannot answer them, all we can conclude is that the Government have lost their last shred of respect for the Scottish Parliament.

[The Attorney General]

That would be absolutely the wrong conclusion to draw. The Attorney General’s convention is clear: the UK Government respect the Scottish Parliament’s ability to legislate within its competence on devolved areas. The Government are committed to working with the devolved Administrations and strengthening the Union of the UK.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Stuart C McDonald Excerpts

Consideration of Lords amendments
Wednesday 24th February 2021 Commons Chamber

[Dr Julian Lewis (New Forest East) (Con)]

Right from the outset, the Intelligence and Security Committee has supported the principle behind the Bill, although we have also welcomed attempts by Members in both Houses to improve it. It is a very important Bill. Covert human intelligence sources or agents provide vital information to assist the security and intelligence agencies in their investigations. They save lives. As the head of MI5 recently said, without them, many of the attacks foiled in recent years

“would not have been prevented.”

In working undercover, CHIS need to be trusted by those they are reporting on, so that they can gain the information that the authorities need. CHIS may therefore need to carry out criminal activity to maintain their cover. Their handlers must be able to authorise them to do so, in certain circumstances and subject to specific safeguards. The Bill places the powers that certain organisations have to authorise such activity on an explicit statutory basis—something that we should all welcome.

The Bill before us has been improved since it was introduced in September, and that is a measure of the effective scrutiny of national security legislation by Parliament, including by the ISC. These are very serious powers for the state to exercise, and it is right that they be properly scrutinised. In particular, the ISC welcomes the provisions brought forward in the other place by Lord Anderson, the former independent reviewer of terrorism legislation, requiring all criminal conduct authorisations to be notified to judicial commissioners as soon as possible and within seven days. Judicial oversight is a vital safeguard, and this measure should give the public confidence that these powers will be used only when proportionate, necessary, and in accordance with the law.

The final amendments to the Bill that the House is being asked to approve today are sensible provisions that the House should welcome. The additional safeguards for children and vulnerable people are particularly welcome, and it is clear that the Government have listened to the strength of feeling in both Houses on this matter. Many of the changes made to the Bill will be reflected in an updated CHIS code of conduct, which I understand will be drafted over the coming months. This revised code of conduct will include new language emphasising the important oversight role of the Intelligence and Security Committee in relation to the use of these powers by the intelligence agencies. The Committee welcomes that, and I can assure the House that the ISC fully intends to exercise its oversight powers to ensure that criminal conduct authorisations are used appropriately.

I thank Ministers and those who support them for the constructive way in which they have engaged with the Committee on the Bill. I pay particular tribute to my right hon. Friend the Minister for Security, who unfortunately cannot be with us today. I wish him the very best for his recovery, and I look forward to working with him in future. Finally, I pay tribute to the men and women of our security and intelligence agencies and, most importantly on this occasion, to their covert human intelligence sources—individuals whom few of us will ever know, but whose bravery saves lives. We all owe them a great debt of gratitude for their courageous service.

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

It is a pleasure to follow the Chair of the Intelligence and Security Committee, and I join him in sending my party’s best wishes to the Minister for Security.

There is absolutely no disagreement about the need for a Bill. These are self-evidently significant, extraordinary and important powers being put on the statute book, and not before time. However, it is precisely because of the significance and importance of these powers that, although we acknowledge the need for a Bill, we could not support one that did not provide proper safeguards, oversight and limitations on these powers. Those points were made at earlier stages by my hon. Friends, including my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) and my hon. Friend the Member for Gordon (Richard Thomson), and that is why we ultimately voted against the Bill on Third Reading.

As the Solicitor General set out, the latest round of ping-pong has produced additional protections in cases where authorisations are being considered for covert sources who are children or vulnerable people. It has also ensured that some access to criminal injuries compensation will continue when a person is a victim of the criminal conduct of a covert source. The Bill is certainly better with these changes. In particular, we welcome the work undertaken by Just For Kids Law, and others, in advocating for safeguards for children and vulnerable adults. They could, and probably should have been even stronger, but even speaking about authorising criminal conduct by a child operating covertly feels very troubling. Hopefully those limits will make such occurrences very rare, as they should be, and we must and will monitor risk closely.

Oral Answers to Questions

Stuart C McDonald Excerpts

Tuesday 28th April 2020 Commons Chamber

[The Solicitor General]

I welcome the hon. Lady to her place. Stakeholder engagement in this matter has been crucial, and continues to be. We have been consulting not only the ethics advisory board for the app, which is chaired by Professor Sir Jonathan Montgomery, but the Information Commissioner, the Centre for Data Ethics and Innovation, the National Data Guardian and many others. Trust is important—it always is—but this app is from NHSX, the tech arm of the NHS, and in this country we trust our NHS with our data. The app is going to be heavily protected and I am confident that it will be very popular.

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

The Information Commissioner has said that the

“starting point for contact tracing should be decentralised systems that look to shift processing on to individuals’ devices where possible.”

Why have the Government apparently gone against that advice and reportedly opted for a significant centralised data-gathering system, with all the challenges and risks that that brings?

Oral Answers to Questions

Stuart C McDonald Excerpts

Thursday 13th February 2020 Commons Chamber

[The Solicitor General]

It is right that public legal education provides people with vital awareness, which is what it does. People need knowledge and understanding of their rights and responsibilities, but it is wrong to say it is a quid pro quo with legal aid. It acts as an adjunct to legal aid, and individuals face difficult challenges and sometimes require additional help. The pro bono work we see in the public legal education carried out by the legal and the third sectors helps to make a real difference. I have visited a number of locations, including the pro bono unit at the University of Leicester just last week, and they are helping people. This is a valuable exercise.

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

Understanding of the law is vital for the rule of law, but as the president of the Law Society reminded us this week, in the light of the deportation rulings, so, too, is judicial review. So why does No. 10 keep attacking judges, instead of law-breaking Ministers? Is judicial review not all the more important because although Parliament might not be “dead”, as the former Attorney General described it, it is utterly supine on providing checks on ministerial powers?

[The Solicitor General]

I do not think Parliament is supine in any context. The reality of the matter is that public legal education provides valuable insight and awareness to young people, in particular, about rights and responsibilities. I do not recognise the characteristic the hon. Gentleman puts on the issue.

Legal Advice: Prorogation

Stuart C McDonald Excerpts

Wednesday 25th September 2019 Commons Chamber

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

Does the right hon. and learned Gentleman agree that any reasonable Attorney General, acting with due care, would query, challenge and perhaps even laugh at any suggestion that five weeks of Prorogation was necessary in order to prepare for a Queen’s Speech?

[The Attorney General]

I think I understood the hon. Gentleman’s question, but I do not agree with its premise.

European Union (Withdrawal) Bill

Stuart C McDonald Excerpts

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

[Mr Speaker]

I call Stuart C. McDonald—fairly briefly. The hon. Gentleman has amendments down and must be heard, but I know he will be sensitive to the importance of the Minister having adequate time to respond to all that has been said, so I am sure that he will be on his feet for only a small number of minutes.

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

Thank you, Mr Speaker. I want to speak briefly to amendments 55 and 56 and to probe one simple issue: in short, what happens if there is a failure to correct a deficiency in EU law, so that it cannot operate effectively after exit, and how can we maximise the chances that such a thing does not happen?

We have had plenty of debate on how we can restrict Government powers to correct deficiencies so that such powers cannot be used to undermine the incorporation of EU rules and so that we do not end up with some sort of watered-down or dysfunctional version of the original. However, perhaps the more realistic possibility, and just as much of a danger, is that we end up with a watered-down or dysfunctional version of EU rules not because of the inappropriate use of those powers of correction, but because of a failure to use them at all in appropriate circumstances, either by accident or design, or if various incorporated rules and regulations are simply allowed to fester away uncorrected and unable to operate effectively. So, I asked at Committee stage, “What happens if there is a citizen before a court in this country, seeking to establish rights under retained EU law when that retained EU law is actually riddled with deficiencies? Is the court supposed to try and make that work? Does the person simply lose their ability to exercise that right?”

My amendment 55 simply requires the court to interpret retained EU law—as far as possible—in such a way as to make it function effectively, borrowing shamelessly from the language of the Human Rights Act. I fully acknowledge that that in itself would not take us very far, but it is there to prompt a response from the Government. What should the court do in those circumstances? There are alternative courses of action that this Parliament could take, not just in amending clause 6 but in other parts of the Bill. We could expressly require EU law to be interpreted so as to be given effect “as if the UK were still a member state”, with further provisions about how that should be done. We could put in place a procedure to allow courts to flag up rules that they have found cannot operate effectively. We could put Ministers under an obligation or a duty to ensure that retained EU laws operate effectively; indeed, amendment 57 and new clause 19 are of that nature. Alternatively, as amendment 56 suggests, we could simply require the Government to publish a list of all the deficiencies they found in retained EU law that they are not seeking directly to rectify.

In short, the task of ensuring that we have a functioning rule book or statute book on exit day is twofold. Parliament must protect important rights, not only by preventing inappropriate use of Henry VIII powers, but by providing a means of ensuring that deficiencies are rectified where necessary, either by the Government, or by Parliament or by our courts, and I still think we have a long way to go in that regard.

[The Solicitor General]

I wish to speak in support of amendments 37 and 38 in the name of my colleagues in Government.

I will try and answer the question that was put to me by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), who has been getting frustrated in these debates about the somewhat technical nature of ministerial responses. Well, this is a very technical Bill. Like its illustrious predecessor, the European Communities Act 1972, it is a Bill of constitutional importance; it is a framework Bill. It is not—I stress this, because it is most important—it is not a Bill that seeks to convey a policy or a particular aspect of policy that we have discussed today. It is a framework that is designed to ensure that the law that is applied up to exit is downloaded in as clear and proper a way as possible because, to be consistent with the rule of law, the law needs to be accessible, it needs to be clear and it needs to be well understood. That is the fundamental basis of my concern about today’s amendments—that in seeking to retain the charter of fundamental rights in domestic law after exit, not only do we sow potential confusion but we fundamentally misunderstand what that charter means in the first place.

Unduly Lenient Sentences

Stuart C McDonald Excerpts

Wednesday 6th December 2017 Westminster Hall

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

It is a pleasure to serve under your chairmanship, Mr Davies. I, too, congratulate the right hon. Member for Hemel Hempstead (Sir Mike Penning) on securing this debate. He makes a powerful and persuasive case.

To cut to the chase, clearly the point the right hon. Gentleman makes about unreported sentences and the strict application of the 28-day rule is unanswerable. That definitely needs fixing. However, the main question he has asked us today is: why should the category of case in which a prosecution can appeal against unduly lenient sentences be limited? As hon. Members have set out, the Attorney General can refer unduly lenient sentences to the Court of Appeal, but only where offences are triable on indictment or are one of a restricted number of specified “either way” offences. The right hon. Gentleman made a powerful case as to why that should change. There seems little logic in such restrictions, so could they be lifted?

I know there are always dangers in comparing the two legal systems, but let me briefly mention the position in Scotland, which I think is relevant and may assist the right hon. Gentleman’s case. The right to appeal against sentences in Scotland is contained in the Criminal Procedure (Scotland) Act 1995.

[Sir Mike Penning]

I am a great advocate of devolution—I was a Minister involved in devolution. This is a devolved matter; this is about English courts and Welsh courts. I do not really understand why, in the limited time we have for this debate, the hon. Gentleman is going to talk about what is going on in the Scottish courts. We can have a debate on that another day. This is about English and Welsh courts.

[Geraint Davies (in the Chair)]

Order. This is a matter for the Chair. The Scottish National party is entitled to respond to the debate. I invite Mr McDonald to continue.

[Stuart C. McDonald]

Thank you, Mr Davies. If the right hon. Gentleman is patient, he will hear that I am trying to support his case by saying that there are no restrictions in Scotland, and the system works. I will also explain changes made there that may provide some ideas for how it could be made to work in England.

As I said, the right to appeal against unduly lenient sentences in Scotland is contained in the Criminal Procedure (Scotland) Act 1995. On the face of that legislation, there are no limits to the class of cases on indictment where the prosecutor can appeal sentences on the grounds of undue leniency. However, in summary cases, the right applies only to a class of case specified by order made by the Secretary of State.

On the face of it, exactly the same situation applies in England and Wales. However, for whatever reason—I do not know what the reasons were at the time—when the order was made in 1996, the class of case specified was effectively “any case”. In short, all sentences, whether on indictment or summary proceedings, can be appealed by the prosecutor. In fairness, that has not clogged up the courts there or indeed the prisons, so I think that is a separate issue. As far as I am aware, it has never been suggested since that limits be applied to such rights to appeal unduly lenient sentences. Some more recent reforms may also be relevant to the current debate; they were designed to make the court processes more sustainable, with significant changes taking place after wide-ranging reviews of both civil and criminal court processes.

In fact, it was a review of civil procedure that prompted the introduction of a new appeal tier, a Sheriff Appeal Court. To assist in ensuring that the High Court and Court of Session focused on the work it truly needed to focus on, the new Sheriff Appeal Court established in 2015 was given the task not only of taking on civil appeals work, but of hearing summary criminal appeals, including appeals against sentence, from both sheriff and justice of the peace courts. Whereas, in the past, sentencing appeals from summary cases would go to the High Court of Appeal, they now go to the new national Sheriff Appeal Court. In short, to answer the right hon. Gentleman’s point, what the Government should consider is whether, at the same time as extending the prosecutor’s right of appeal in “either way” cases, one way to make it work more effectively and efficiently without clogging up the Court of Appeal is to look for an alternative forum for such appeals against unduly lenient sentences.

Oral Answers to Questions

Stuart C McDonald Excerpts

Thursday 14th January 2016 Commons Chamber

[Mr Vara]

This issue was not in the manifesto of either the Labour party or the Scottish National party. That is not surprising, given that undoing the 2011 measures would cost over £30 billion. If the hon. Lady persists in pursuing this policy from the Labour Front Bench, it is important for her to outline from where it would get that £30 billion.

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

3. If she will discuss with the Home Secretary the treatment of pregnant women detained for immigration purposes.

[Callum McCaig (Aberdeen South) (SNP)]

10. If she will discuss with the Home Secretary the treatment of pregnant women detained for immigration purposes.

[Stuart C. McDonald]

I am grateful for that answer, and we look forward to hearing what Stephen Shaw has to say, albeit that we are slightly sceptical about the remit that he was operating under. What steps will the Minister take to ensure that Government policy of detaining only in exceptional circumstances is, at the very least, put into practice and is not fiction? It would be even better if she ensured that the detention of pregnant women came entirely to an end.

[Karen Bradley]

It is Government policy that pregnant women should be detained only in exceptional circumstances. In normal circumstances, they should not be detained. Where a matter affecting a pregnant woman being detained comes to light, it is looked at with the utmost urgency.