Serious Fraud Office and the Unaoil Case: Independent review

Suella Braverman Excerpts

Thursday 21st July 2022 Written Statements

[The Attorney General (Suella Braverman)]

I wish to provide details of the findings of an independent review I commissioned into the Serious Fraud Office (SFO) failings identified by the Court of Appeal in the case of R. v. Akle and Anor (2021). I committed to this in my written statement of 9 February 2022.

The objectives of the review were to consider and provide recommendations in relation to the following matters:

1. What happened in this case and why? In particular, assessing the two key failings identified in the judgment: a) What occurred as regards SFO contact with third-parties and why; and b) Why did the SFO disclosure failures identified in the Court of Appeal judgment occur?

2. What implications, if any, do the failings highlighted by this case have for the policies, practices, procedures and related culture of the SFO?

3. What changes are necessary to address the failings highlighted by the judgment and any wider issues of SFO policies, practices, procedures or related culture identified by the reviewer?

I am grateful for Sir David Calvert-Smith’s work on leading this review. His findings fall into two categories: thematic failings and events. Sir David found five recurrent themes that were fundamental to the Court's judgment, some of which indicate general organisational issues within the SFO’s control and where failures occurred. These themes are: record-keeping; compliance with casework assurance processes; resourcing; understanding about priorities; and distrust between the case team and senior management resulting from the latter’s contact with David Tinsley. Sir David highlights a sequence of 17 events or mistakes that led to the Court's judgment.

Following these conclusions, Sir David makes eleven recommendations which the Attorney General’s Office (AGO) and SFO accept. They broadly cover:

1. Case assurance—all cases should have sufficient resources, all members of case teams should comply fully with case assurance processes and all contact with defendants, suspects and their representatives should be recorded as necessary. Superintendence should be revised and considered further.

2. Disclosure—all cases should have effective disclosure strategies and management, and the Attorney General’s Office and SFO should work together to identify any necessary changes to the Attorney General’s disclosure guidelines.

3. Personnel—all staff should be able to raise concerns about cases, the relationships between investigators and prosecutors should function as envisaged under the Roskill model, and there should not be “interregnum periods” between Directors or General Counsel.

Building on work already undertaken by the SFO a clear plan of action to respond to the review recommendations has been developed. I will be closely monitoring the SFO’s progress and delivery of that plan and will provide an update to Parliament in November 2022 and February 2023.

I will place a copy of the review and the response in the Libraries of both Houses so that they are accessible to Members. Junior officials’ names have been redacted from the published review in line with standard Government practice. The SFO has waived legal privilege in relation to legal advice referred to in the review only for the purposes of this review.

The documents will also be available on gov.uk.

[HCWS267]

Disclosure Review and Guidelines

Suella Braverman Excerpts

Thursday 26th May 2022 Written Statements

[The Attorney General (Suella Braverman)]

I should like to provide details of the annual disclosure review 2021-22 and the corresponding amendments to the Attorney General’s disclosure guidelines.

Following the significant changes to the disclosure guidelines, which came into effect on 1 January 2021, I committed to undertake an annual review of the guidelines, which has now concluded, and alterations to the guidelines premised upon the review’s findings have been made.

The vast majority of the disclosure guidelines remain as they were when they came into effect on 1 January 2021. The changes have focused on four primary areas:

Third party material access—the provisions for accessing third party material are now expressed in a staged manner to aid with their application by busy investigators, disclosure officers and prosecutors. The principles are also strengthened in line with the dicta of the Court of Appeal in R v. Bater-James & Anor [2020] EWCA Crim 780. Investigators and prosecutors are also now explicitly required to keep written records of the reasons for making third party material requests, and to balance such requests with the privacy rights of those affected.

Material presumed to meet the test for disclosure—this section of the guidelines has been subject to limited restructuring in order to clarify that material contained in a crime report need only be provided once, via the provision of the crime report, and need not be duplicated where it appears elsewhere. Important clarifications to the practicality of providing large video files, especially body worn videos, have also been made to aid investigators.

Defence engagement—throughout the guidelines, guidance as to how and when the defence should provide information to the prosecution has been clarified and where appropriate made more definitive.

Redaction annex—a new annex has been added clarifying how investigators should meet their data protection obligations when providing material to the CPS for the purposes of a charging decision.

The Government are keen to ensure that victims get efficient and effective justice, and that investigations and prosecutions are not impacted by undue or needless burdens being placed on the police. These changes will assist in enhancing the efficiency of disclosure and offer clear, rigorous and practical guidance to support this end.

I will place a copy of the updated disclosure guidelines in the Libraries of both Houses so that they are accessible to Members.

[HCWS58]

Serious Fraud Office and the Unaoil Case: Independent Review

Suella Braverman Excerpts

Wednesday 9th February 2022 Written Statements

[The Attorney General (Suella Braverman)]

I wish to provide details of an independent review I have commissioned into the Serious Fraud Office (SFO) failings identified by the Court of Appeal in the case of R. v. Akle and Anor [2021].



This case, investigated and prosecuted by the SFO between 2016 and 2021, resulted in criticism by the Court of the way in which the SFO engaged with third parties and handled disclosure. On receiving the judgment, it was clear to me that swift action was needed to identify how these issues arose and what changes are needed to ensure they are not repeated.



I have appointed Sir David Calvert-Smith to lead this review. Sir David is a former Director of Public Prosecutions and High Court judge who has led several independent reviews and has significant experience relevant to the issues raised.



Sir David will consider and provide recommendations in relation to the following matters:



What happened in this case and why. In particular, the review should assess the two key failings identified in the judgment:

what occurred as regards SFO contact with third-parties and why; and

why did the SFO disclosure failures identified in the Court of Appeal judgment occur?

What implications, if any, do the failings highlighted by this case have for the policies, practices, procedures and related culture of the SFO?



What changes are necessary to address the failings highlighted by the judgment and any wider issues of SFO policies, practices, procedures or related culture identified by the reviewer?

Sir David will have the support of a small team including the Deputy Chief Inspector of Her Majesty’s Crown Prosecution Service Inspectorate, Anthony Rogers. Sir David will aim to report to me by the end of May 2022 and I will then provide a further update to Parliament on his findings and my response to them.

The Government are determined to make the UK a hostile environment for all forms of economic crime. It is a priority for me to ensure effective sponsorship of the SFO, which includes supporting and holding the Director to account, as well as safeguarding the SFO’s independence to investigate and prosecute crime.

[HCWS602]

Reconsidering a Prosecution Decision: Revised CPS Guidance

Suella Braverman Excerpts

Thursday 25th February 2021 Written Statements

[The Attorney General (Suella Braverman)]

The Crown Prosecution Service (CPS) has today published revised guidance to prosecutors on when they may institute or reinstitute criminal proceedings after a decision not to prosecute or to terminate proceedings has been communicated to a suspect or defendant.

The guidance sets out the framework for when this is possible as a matter of law and the governing principles that apply to the CPS decision. Victims of crime and the public have a legitimate expectation that those who commit offences will be brought to justice. Where it is legally possible to do so, and the evidential and public interest test provided for in the code for Crown Prosecutors is met, there are two important protections for the suspect, to ensure that there is no injustice done: first, the right of a defendant to revive proceedings in the magistrates’ court, under section 23(7) of the Prosecution of Offences Act 1985; secondly, the court’s power to stay any proceedings which amount to an abuse of the court’s process.

The guidance also provides a non-exhaustive list of eight examples to illustrate the types of situations where cases are discontinued and later reinstated. They include where a further review shows that the original decision was wrong, when further evidence is anticipated in the near future, where significant evidence is later discovered, when a case is reviewed further in light of the findings of an inquest and where there are outstanding lines of inquiry to be completed or relevant material to be obtained. The guidance clarifies the procedure to be adopted and establishes the level of seniority at which any decision must be made. The fundamental evidential and public interest considerations have not changed.

A copy of the revised guidance has been placed in the Libraries of both Houses.

[HCWS808]

Criminal Cases: Guidelines on Disclosure

Suella Braverman Excerpts

Thursday 17th December 2020 Written Statements

[The Attorney General (Suella Braverman)]

I wish to provide an update in relation to the Attorney General’s guidelines and the CPIA code of practice.

Disclosure

The disclosure of unused material in criminal cases remains a crucial part of ensuring a fair trial takes place and is essential in avoiding miscarriages of justice. Unfortunately, the failure to disclose material promptly has led to the collapse of a number of trials and has impacted on the public’s confidence in the administration of the criminal justice system.

It is a priority for this Government to continue to encourage improvements in the disclosure process and to achieve permanent change. It is essential that we ensure there are fair trials for all and that we increase confidence in the criminal justice system.

The Proposed Changes

In November 2018, the Government published a “Review of the efficiency and effectiveness of disclosure in the criminal justice system”, which made a set of recommendations to improve disclosure performance and to address the key challenges of modern disclosure practice. The review recommended that the Attorney General’s guidelines on disclosure required an update in order to truly reflect the challenges of today’s disclosure regime.

The guidelines provide a set of high-level principles on the disclosure of unused material in criminal cases, aimed at assisting investigators, prosecutors and defence practitioners in England and Wales apply the disclosure regime contained in the CPIA code of practice.

The changes seek to provide a better representation of the challenges the modern-day investigator, prosecutor and defence practitioner faces. The updated guidelines address the need for culture change, earlier performance of disclosure obligations, the use of technology and balancing the right to privacy with the right to a fair trial.

This is an opportunity to take a crucial step in the disclosure process, both to deal with issues that have been a long-standing concern and to provide practitioners with the tools they need to handle their disclosure obligations effectively.

Following the successful parliamentary passage of the statutory instrument in relation to the code of practice, I can now confirm that both the guidelines and the code will be effective from 31 December 2020. The Lord Chancellor and I thank all of those who have engaged with us during the process and we are grateful for the role that they have played in recognising the complex challenges that affect the proper performance of the duty of disclosure.

[HCWS662]

Criminal Procedure Investigations Act Code of Practice: Attorney General’s Guidelines

Suella Braverman Excerpts

Tuesday 9th June 2020 Written Statements

[The Attorney General (Suella Braverman)]

I wish to provide an update on the public consultation on the Attorney General’s guidelines on disclosure and the CPIA code of practice.

Extended deadline

In February this year, as a result of the hard work undertaken by all involved in the disclosure review, the Lord Chancellor and I launched a public consultation on the revised versions of the Attorney General’s guidelines on disclosure for investigators, prosecutors and defence practitioners (“the guidelines”) and the Criminal Procedure and Investigations Act 1996 (“CPIA”) code of practice.

In order to show support to all those facing increasing covid-19 related pressures, the Lord Chancellor and I decided to extend our consultation. We hope that this new deadline will provide enough time for legal professionals, criminal justice partners and those interested to put forward their views on the changes being made.

As it has not been possible to proactively engage with criminal justice partners as originally anticipated, we wanted to take the opportunity to ask you as Members of Parliament, to encourage those with whom you work who may have an interest in this area to provide feedback to our public consultation. This would help us to engage with key professionals and those with experience in disclosure to ensure that the changes we are proposing are as effective as possible.

The consultation will now close on 22 July 2020 and further details can be found at: https://www.gov.uk/government/publications/consultation-on-revisions-to-the-attorney-generals-guidelines-on-disclosure-and-the-cpia-code-of-practice.

Disclosure

The disclosure of unused material in criminal cases remains a crucial part of ensuring a fair trial takes place and is essential in avoiding miscarriages of justice. Unfortunately, the failure to disclose material promptly has led to the collapse of a number of trials and has impacted the public’s confidence in the administration of the criminal justice system.

It is a priority for this Government to continue to encourage improvements in the disclosure process and to achieve permanent change. It is essential that we ensure there are fair trials for all and that we increase confidence in the criminal justice system.

The proposed changes

In November 2018, the Government published a review of the efficiency and effectiveness of disclosure in the criminal justice system, which made a set of recommendations to improve disclosure performance and to address the key challenges of modern disclosure practice. The review recommended that the Attorney General’s guidelines on disclosure required an update in order to truly reflect the challenges of today’s disclosure regime.

The guidelines provide a set of high-level principles on the disclosure of unused material in criminal cases, aimed at assisting investigators, prosecutors and defence practitioners in England and Wales apply the disclosure regime contained in the CPIA code of practice.

The changes seek to provide a better representation of the challenges faced by the modern day investigator, prosecutor and defence practitioner. The updated guidelines address the need for culture change, earlier performance of disclosure obligations, the use of technology and balancing the right to privacy with the right to a fair trial.

This consultation is an opportunity to take a crucial step in the disclosure process, both to deal with issues that have been a long-standing concern and to provide practitioners with the tools they need to handle their disclosure obligations effectively.

The Lord Chancellor and I thank all of those who have engaged with us during the process and we are grateful for the role that you have played in recognising the complex challenges that affect the proper performance of the duty of disclosure.

[HCWS276]

Oral Answers to Questions

Suella Braverman Excerpts

Tuesday 28th April 2020 Commons Chamber

[Mr Speaker]

I call the Attorney General to answer the substantive question tabled by Carolyn Harris. May I welcome the Attorney General to her new role? Congratulations.

[The Attorney General (Suella Braverman)]

Thank you, Mr Speaker.

I congratulate the shadow Solicitor General, the hon. Member for Lewisham West and Penge (Ellie Reeves), on her appointment, and the shadow Attorney General, Lord Falconer, on his. I look forward to constructive debate with both of them, hopefully in the same room at some point.

There is no doubt whatsoever that this Government take domestic abuse and the pain that it causes extremely seriously, and that is especially the case at this time. The Crown Prosecution Service is wholly committed to ensuring that the perpetrators of this horrendous crime face justice and that victims are supported through what is often a very traumatic process.

[Carolyn Harris [V]]

Calls to the national domestic abuse helpline have increased by almost 50%, and 16 deaths of women and children were linked to domestic violence in the first three weeks of lockdown. With the CPS issuing new guidance as a result of the pandemic that advises prosecutors to prioritise the most serious cases, what assurances can the Attorney General provide that domestic abuse cases will fall into that category?

[The Attorney General]

I thank the hon. Lady for her considerable work on this subject and her courage in speaking out about this matter. I myself represented victims of domestic abuse during my time as a lawyer. I have seen how devastating it can be, and I share her goal in wanting to eliminate this scourge from our society. I am very concerned about the rise in domestic abuse offending during lockdown. This is a difficult time for those who may be living with their abuser. That is why the Government have invested an extra £2 million at the frontline for online services and phone lines so that there is help 24 hours a day, seven days a week, for those victims who need it.

[Nick Smith]

It is vital that cases of domestic violence are properly prosecuted during this covid-19 crisis. To avoid delays in prosecution, are the Government taking the necessary steps to enable the most serious cases to be heard through virtual court hearings where necessary?

[The Attorney General]

The hon. Gentleman makes a very important point. We need to go as far as we possibly can to support vulnerable victims throughout the court process. The CPS is at the forefront of implementing section 28 pre-recorded cross-examination, which aims to allow vulnerable victims to give evidence in advance of trial so that they can have a better experience of the process. I encourage him to look closely at the Domestic Abuse Bill, which contains considerable provisions to protect vulnerable witnesses throughout the court process.

[Bob Blackman (Harrow East) (Con) [V]]

I congratulate my right hon. and learned Friend on her new post; I am sure that she will do an excellent job.

With 100 arrests a day for alleged domestic violence in London alone, clearly the problem is getting worse. What action can my right hon. and learned Friend take to ensure that the victims of domestic abuse feel safe to give evidence against the perpetrators? At the moment, they fear reprisals and are not in a safe position.

[The Attorney General]

This is an important point. A range of protections is available for victims so that they can give evidence in such situations. Prosecutors can apply for special measures, including a screen, or for evidence to be given via video link, so that victims do not need to have contact with their abuser in the trial process.

[Edward Timpson (Eddisbury) (Con) [V]]

It cannot be emphasised enough how important it is that victims of domestic abuse get the support that they need during this very difficult time. Does my right hon. and learned Friend agree that this often-hidden scourge, which affects children as well as adults, must be a priority for the Government at all times, as is demonstrated by the commitments in the Domestic Abuse Bill?

[The Attorney General]

My hon. Friend speaks with authority about child safeguarding, based on his practice as a barrister and his time in government as a Minister. These crimes are abhorrent, and those who commit them must not be let off the hook. Today, the landmark Domestic Abuse Bill returns to the Commons for its Second Reading. I am very proud to have personally supported this landmark legislation that provides support—legal and otherwise—for victims of domestic abuse, including children, so that we as a nation take a step further towards eliminating domestic abuse.

[Ellie Reeves (Lewisham West and Penge) (Lab) [V]]

I congratulate the Attorney General on her appointment; likewise, I look forward to a constructive working relationship with her.

Charities and police forces across the country anticipated a rise in domestic abuse during the lockdown. Indeed, the Met is currently arresting an average of 100 people a day, with charges and cautions up 24%. Devastatingly, domestic abuse killings doubled in the first three weeks of lockdown. Meanwhile, in January, a report by the Crown Prosecution Service inspectorate stated that the domestic abuse case load for both the CPS and police had increased by 88%, against the backdrop of a 25% reduction in funding, therefore stretching prosecutors’ workload and forcing them to make difficult decisions about priorities. I am extremely grateful for what the AG has said, but I urge her to significantly increase funding—

[Mr Speaker]

Order. We have to bring in the Attorney General.

[The Attorney General]

I am acutely concerned by the rise in domestic abuse offences in lockdown, and I want to make two points. First, the Domestic Abuse Bill, which returns to the Commons today, will involve the allocation of £3.1 million to services supporting children who witness domestic abuse in the house during lockdown. Secondly, I want to take this opportunity to let victims out there—men and women—know that they do not have to suffer in silence. There is support for them if they seek it. Please pick up the phone and dial 999; press 55 if you cannot speak. Use the national domestic abuse helpline. Crucially, please know that if you want to flee your abuser—if you want to leave the home—you will not be breaking coronavirus regulations. You will not be breaking the law if you seek help outside.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

What recent progress the CPS has made on increasing prosecution rates for serious fraud.

[The Attorney General (Suella Braverman)]

Last year, the Crown Prosecution Service prosecuted over 10,000 defendants where the principal offence was fraud or forgery. It also has a specialist fraud division, which brings together expertise and skills to prosecute complex and serious fraud.

[Kevin Hollinrake]

I welcome my right hon. and learned Friend to her role. She will do a tremendous job, and she has an immediate opportunity to right a wrong. It is 10 years since my constituent, Ian Foxley, blew the whistle on corrupt payments at GPT Special Project Management. That has not come to a resolution. Will she now bring it to a resolution and ensure that my constituent and others in the same situation are properly compensated?

[The Attorney General]

I thank my hon. Friend for his extensive work on that case. He has been indefatigable in seeking a resolution for his constituent—of that there is no doubt. Unfortunately, I cannot comment on the details of the case, because the Serious Fraud Office is undertaking criminal investigations into the affairs of GPT and Saudi Arabia, which have taken some time because of the significant complexity involved. However, I would like to reassure my hon. Friend, because upon my appointment to this job, that case was one of the first matters, if not the first, to cross my desk, so it is a priority for me and I will not rest until we find an appropriate resolution.

[Bambos Charalambous (Enfield, Southgate) (Lab)]

Five thousand suspicious emails were reported to the National Cyber Security Centre just one day after the launch of its Cyber Aware campaign earlier this month, with a huge growth in malicious emails offering fake coronavirus-related services. Can the Attorney General tell me how prepared the CPS is to deal with prosecuting online fraud and scams during the coronavirus emergency?

[The Attorney General]

The hon. Gentleman is absolutely right to raise this point, and I recognise the increased risk posed by scammers and fraudsters at this time of crisis. Sadly, there are those who will seek to exploit the vulnerable at this time. We are leading several initiatives in this area, such as working with the technology industry, to shut down any vulnerabilities that fraudsters might exploit and to ensure that the public have the knowledge so that they can spot scams and stand up to fraudsters.

[Sir David Evennett (Bexleyheath and Crayford) (Con) [V]]

I appreciate all the work my right hon. and learned Friend is doing in her new job at this difficult time. Naturally, there is real concern about crime, particularly fraud against the elderly. How is the CPS tackling cases of covid-19-related fraud?

[The Attorney General]

This is an important issue. Sadly, criminals are looking to take advantage of the vulnerable during this pandemic. It is shameful and disgusting, but sadly it is a fact of life. We recognise the threat posed, and that is why the CPS and the police have published a joint charging protocol that makes it clear that covid-related fraud will be a priority for an immediate charging decision. I am glad that, as a result, we have already seen some successful prosecutions of such offences.

[Felicity Buchan (Kensington) (Con)]

We all welcome the enormous packages of support that the Treasury has put together for businesses and individuals, but clearly there is the prospect of fraud by people applying to some of those schemes. Has my right hon. and learned Friend had discussions with the Treasury on those matters?

[The Attorney General]

As the Chancellor of the Exchequer made clear in his announcements, the unprecedented level of support for businesses and those in financial difficulty has sadly raised the risk of fraud on the Exchequer, which is of course fraud on the taxpayer. There will be those who try to play the system, to make false claims and, frankly, to defraud and deceive. The Cabinet Office counter-fraud function is leading the work to minimise the risk, and the CPS has been fully engaged with this vital work.

[Mr William Wragg (Hazel Grove) (Con)]

What assessment she has made of the effectiveness of the CPS during the covid-19 outbreak.

[Tom Hunt (Ipswich) (Con)]

What steps she is taking to ensure the effectiveness of the CPS during the covid-19 outbreak.

[The Attorney General (Suella Braverman)]

I would like to put on record my thanks to the whole CPS family and, indeed, the wider justice system for their hard work during this uncertain period. CPS staff are working remotely and, where safe to do so, in person. They are playing a full part in supporting the criminal justice system’s response to the pandemic with the use of more technology, more collaboration and planning for recovery.

[Mr Wragg]

I welcome my right hon. and learned Friend to her post. Further to her answer, will she tell me how the Crown Prosecution Service is working with the courts to manage the impact of covid-19 on its services and particularly to support them in planning for recovery, not least for the administration of justice?

[The Attorney General]

Justice is non-negotiable, and notwithstanding the crisis we are facing, it is important that justice continues to be done and continues to be seen to be done. There has been very effective work between the CPS and other partners—for example, the judiciary and the Courts Service—to ensure that practical arrangements are put in place so that, as far as possible, our justice system continues to function through the use of technology and the efficient management of resources. The CPS is also working with partners to turn its focus towards recovery, including exploring options for a phased recovery.

[Tom Hunt [V]]

Over recent weeks, we have seen a shameful trend in suspected criminals spitting and coughing at police officers. There have been a number of cases in my constituency of Ipswich, and it is a particularly pernicious form of assault during a covid-19 outbreak. Those responsible must have their day in court, and that day must come quickly so that they can be duly punished and others can be deterred. What steps is my right hon. and learned Friend taking to ensure that the CPS is right behind our police in prosecuting those responsible for this horrible crime and bringing them to justice quickly?

[The Attorney General]

My hon. Friend makes a crucial point. Those on the frontline—those in the trenches of this battle—who are risking their own safety in the service of others are the heroes in this crisis and they deserve nothing less than our admiration. That is why assaults on emergency workers will not be tolerated. Those who commit these sickening offences will face the full force of the law. I am glad to have seen—if “glad” is the right word to use—that the CPS has successfully prosecuted several such offences recently.

[Robert Largan (High Peak) (Con) [V]]

What steps are the Government, along with the CPS, taking to ensure that this current crisis does not leave us with an enormous backlog of court cases that could lead to huge costs and delay justice for a long time to come?

[The Attorney General]

My hon. Friend raises an important point. The CPS and others have been working at pace to ensure that justice continues to be served. The Coronavirus Act 2020 enables the use of video and digital technology to facilitate court hearings during this crisis. The CPS is working with the judiciary to manage the listing of cases, so that cases that can be dealt with by way of a guilty plea or by other disposal are prioritised, which will go some way towards reducing the backlog in the system.

[Kerry McCarthy (Bristol East) (Lab)]

What discussions she has had with the Director of Public Prosecutions on CPS management of people remanded on bail during the covid-19 outbreak.

[The Attorney General (Suella Braverman)]

[Inaudible]—capacity across the criminal justice system, and our focus is to ensure that the most dangerous offenders are dealt with as a priority. All cases with an approaching trial date, including bail cases, are under review to ensure that serious and time-sensitive cases are prioritised for trial and that any bail conditions remain suitable.

[Kerry McCarthy [V]]

Given that there was already a backlog of more than 37,400 Crown court cases before the covid-19 outbreak—I am sure that many of those defendants were remanded in custody—what is the CPS doing to ensure that bail hearings for people who perhaps do not need to be remanded in custody can be expedited and that people can be released into the community when it is safe to do so? In that way, we can ease the pressures on the prison estate in dealing with the coronavirus outbreak.

[The Attorney General]

Clearly, any bail should be for the shortest possible period, because it restricts the ability of an individual to carry out their normal life while they remain innocent until proven guilty. Each case needs to be assessed on the individual facts, including the potential risks posed by a defendant of, for example, further offending or absconding. There are statutory limits underpinning the conditions that can be imposed, and the defendant has a right to apply to the court to vary or remove any conditions of bail. We need to ensure that these cases continue to be dealt with expeditiously, and the CPS is working with the judiciary to consider options for restarting some trials while maintaining social distancing.

[Afzal Khan (Manchester, Gorton) (Lab)]

What discussions she has had with the Secretary of State for Health and Social Care on the effect of the covid-19 contact tracing app on civil liberties.

European Union (Withdrawal) Bill

Suella Braverman Excerpts

Committee: 2nd sitting: House of Commons
Wednesday 15th November 2017 Commons Chamber

[Kerry McCarthy]

I can only invite the Minister to intervene on me at some point before I finish this speech and give a bit more clarity. I am glad that another superior intellect is as baffled as I was by that provision.

Amendment 95 adds wording that attempts to deal with the poor transposition of EU law, so that if retained law is found to have been incorrectly or incompletely transposed, there would be a statutory obligation on Ministers to make the necessary modifications to correct that. It says that until that piece of EU law is fully and correctly transposed, the EU directive itself can still be relied on. There are some clear examples of where we have not correctly transposed EU directives. For example, the Royal Society for the Protection of Birds points to article 10 of the birds directive in relation to the marine environment, which requires Governments to carry out research and other works to inform our efforts to protect wild birds. That goes back to what I was saying earlier—that it is not possible to enforce environmental protections properly without monitoring to ascertain the scale of the problem. The requirement to carry out research has not been transposed into domestic legislation, which means that, for instance, a new seabird census is long overdue. The Royal Society for the Protection of Birds was able to take that as a complaint to the European Commission, but there will clearly be a different scenario after Brexit.

New clause 28 concerns the enshrining of domestic principles in domestic law, which was referred to by my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook) and with which I am sure my hon. Friend the Member for Wakefield (Mary Creagh) will deal shortly.

When the Government say that the Bill will ensure that the whole body of existing environmental law continues to have effect, that should mean not just specific substantive obligations but the broad and comprehensive framework in which those obligations are embedded, including the principles that underpin and aid the interpretation of environmental laws—such as the “polluter pays” principle, which states that those responsible for damaging our environment must pay, and the precautionary principle, which states that if there is a suspected risk that a policy could cause severe harm to public health or the environment, we should not proceed with it. Those principles are currently part of the body of EU environmental law in the treaty on the functioning of the European Union, and are also contained in a wide range of legal agreements to which the UK is party. They guide decision making, and provide a basis for legal challenge in court. Richard Benwell of the Wildfowl & Wetlands Trust has said:

“Take out principles like precaution and polluter pays and you rip the heart out of environmental law.”

NC28 would ensure that public authorities carrying out their duties must have regard to environmental principles that are currently enshrined in EU law. Schedule 1 states—the Minister touched on this—that

“There is no right of action in domestic law”

post-exit

“based on a failure to comply with”

EU “general principles”, other than those that have been litigated on by the European Court. That creates a problem. I should be grateful if the Minister could clarify another issue that was mentioned earlier by the hon. Member for North Down (Lady Hermon). “General principles” seem to specifically exclude environmental principles.

When the Environment Secretary gave evidence to the Environmental Audit Committee last week, he said that the principles could best be enshrined in UK law through guidance. Although we know that, in some cases, the precautionary principle has been enforced in the UK courts in relation to planning issues, that does not mean that it would apply more broadly than it does now. What we currently have is not simply guidance. For the principles to have equivalence on exit day, they must be placed in domestic legislation. Laws are binding, but guidance is only guidance. Public authorities must take it into account, but they need not follow it if it conflicts with other priorities.

[Suella Fernandes (Fareham) (Con)]

Will the hon. Lady give way?

[Kerry McCarthy]

I am about to finish my speech.

Guidance is much easier to change at the whim of the Government or, indeed, the Secretary of State. The courts are much less likely to uphold guidance. There is much more deference from the courts to the authority or organisation whose decision is brought under review. It is difficult to see how guidance would enhance observance of the principles above EU standard. We do not see our domestic courts doing that at present. The Environment Secretary talks of an ambition to raise standards rather than sticking to those that we currently have, and I should be grateful for clarity in that regard.

The purpose of new clause 28 is to transfer vital principles into domestic law, from the need to promote sustainable development in the UK and overseas to the “polluter pays” principle and the precautionary principle. I believe that only by enshrining those principles in UK law can we give the public confidence that they will be upheld.

--- Later in debate ---

[Zac Goldsmith]

There are many examples. I have spoken out about hormones in beef often in this House—bovine growth hormones, chlorination of chicken and the use of chemicals that we do not allow in this country, or indeed in the EU. But this will come down to the quality of the negotiations that we engage in, and it is the job of this House to ensure that the agreements we reach honour and respect the standards expected by our constituents.

There is no reason to believe that we will not be able to do that. We have had absolute reassurances and some wonderful statements from the Secretary of State, and long may he avoid promotion—I hope he does not mind me saying so—because I do not want to see him move. Like the hon. Member for Brighton, Pavilion (Caroline Lucas), I do not want to see the Secretary of State bumped upstairs into a bigger job, not that he could not do it; he is doing such a good job where he is at the moment that I want him to stay there, and I have absolute confidence in him.

[Suella Fernandes]

I applaud my hon. Friend’s passion and expertise in this subject. Does he agree that the world-leading environmental body that is proposed for when we leave the EU is a great opportunity that Britain can grasp to take the lead on environmental standards?

[Zac Goldsmith]

I could not agree more with my hon. Friend. In one of his interventions, the Secretary of State said that nature by definition does not have a voice and that it is our job to give nature a voice. That is what we will do if we create an appropriate institution. I am absolutely committed, as my hon. Friend is and as many Members on both sides of the Committee are, to work together to get a world-class body to ensure that nature has a voice and that the Government can be held to account. That is what we must do and will do.

Investigatory Powers Bill (Fifteenth sitting)

Suella Braverman Excerpts

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

[The Solicitor General]

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

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

[Suella Fernandes (Fareham) (Con)]

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

[The Solicitor General]

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

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

Investigatory Powers Bill (Seventh sitting)

Suella Braverman Excerpts

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

[The Solicitor General]

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

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

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

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

I will finish the paragraph:

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

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

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

[Suella Fernandes (Fareham) (Con)]

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

[The Solicitor General]

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

--- Later in debate ---

[Mr Hayes]

That is a fair argument and that is why it is necessary to supplement what the hon. and learned Gentleman describes with the code of practice in the way that I have described. My invitation to him was that if he accepts that, he might want to focus attention on the code of practice to see whether it is as good as it might be. I drew attention to the provision on the necessity and proportionality. It might be that the draft could be further improved. After all, nothing, at least on earth, is perfect, and certainly no Government would want to claim perfection—

[Suella Fernandes]

rose—

[Mr Hayes]

I was about to say that perfection was an intellectual construct, but I am happy to give way on that note.

[Suella Fernandes]

Is it not impossible that privacy will not be considered as part of any application? Proportionality runs through the authorisation regime, and if a single point of contact has to apply a proportionality test, by definition and necessity, he will incorporate a wide-ranging consideration of the impact on privacy.