Investigatory Powers Bill (Fifth sitting)

Suella Braverman Excerpts

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

[The Solicitor General]

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

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

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

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

[Suella Fernandes (Fareham) (Con)]

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

[The Solicitor General]

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

Investigatory Powers Bill (Sixth sitting)

Suella Braverman Excerpts

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

[Keir Starmer]

I am grateful for that intervention. If the Solicitor General can point to such a provision, I would be interested to see it. On the face of it, the clause allows designated senior officers within a public authority to obtain communications data in the interests of the economic wellbeing of the UK without that further qualification.

Subsection (7) then states that data can be obtained

“in the interests of public safety…for the purpose of protecting public health”

or,

“for the purpose of assessing or collecting any tax”.

We then come to paragraph (g), on which I want to spend some time. It states that data can be obtained

“for the purpose of preventing death”—

that would obviously be a high threshold—

“or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health”.

The threshold is way, way down. There are many ways in which a person’s physical or mental health could be damaged. The Bill, if passed, will authorise access to communications data without any threshold as to the level of damage or injury.

[Suella Fernandes (Fareham) (Con)]

I appreciate the hon. and learned Gentleman’s analysis, but does he agree that obtaining communications data is one of the less intrusive powers contained in the legislation, but such data are very helpful for setting the scene and planting the seed for investigations? That has to be borne in mind when looking at the authorisation regime, because this is different from other powers.

[Keir Starmer]

Let me take that in stages. I accept that accessing communications data is in a different category and order from, say, the interception of the contents of communications. I also accept the proposition that communications data are used in many cases involving serious crime. I will go further than that: it is rarely possible to bring and to conclude cases of serious criminality without reliance on communications data. I have no in-principle objection to communications data being made available and being used. My concern is the very low level of sign-off required to access those data and the lack of any meaningful threshold in subsection (7); there simply is not one. Whether or not a meaningful threshold is achieved by the insertion of the word “serious”, as I propose in my amendment, or some other word, if we simply say that it could be necessary and proportionate to access communications data to prevent any crime or damage, we are proceeding on a basis for which it is very hard to think of any circumstances in which it would be difficult or impossible to justify obtaining communications data. It just is not a set of thresholds.

Dealing with miscarriages of justice and situations in which a person has died and so on, and

“for the purpose of exercising functions”

are listed in the subsequent paragraphs. My central point is obvious but important. I realise how necessity and proportionality apply, but on any reading of subsection (7) there is no threshold. I think there is a risk for the Government here. I appreciate the direction of travel of the Court of Appeal, but does anybody seriously think that the jurisprudence is not going to develop to a point where there is a threshold that is thought to be appropriate? It is one thing to say that we do not necessarily have to have a threshold of serious crime, but to go from that to saying that we do not have to have any threshold at all is to invite problems, if these provisions are passed.

[Suella Fernandes]

It appears that the hon. and learned Gentleman is dismissing the necessary hurdles of necessity and proportionality in satisfying the tests. They are obviously going to relate to and be thresholds, so is it not wrong to say that there is no threshold in the clause?

[Keir Starmer]

I appreciate that the necessity and proportionality test has to be applied—in any given case there will always be an argument about whether it is necessary and proportionate—but as ever with necessity and proportionality the question is: what are we assessing necessity against and how are we arguing that it is proportionate? Is it necessary to do what? We get that only from the face of the statute. In other words, necessity does not give us anything unless we have some subject matter that it bites on, which is why the subject matter that it bites on is so important. Whether it is necessary for serious crime is one question; whether it is necessary for crime is another.

There are many, many things that one could say were necessary to prevent or detect crime. I absolutely accept that in practice those two tests are applied at all times, but the question is: what are they applied to? The question that the designated senior officer has to ask him or herself is: “Am I satisfied that it is necessary to prevent crime?” That would be good enough under the clause. It is, in principle, an inadequate threshold. I also think it will invite challenge in due course, because I do not think for one moment that, in the long run, the European Court and our courts are going to be satisfied with a scheme that does not have any threshold, even though there will be and are arguments about the precise threshold. We can see what the divisional court said in the Tom Watson case, so it is not just counsel’s argument that was never accepted by anybody. In that case in the divisional court, counsel’s argument that the serious crime threshold was an important safeguard was accepted. Thankfully, the writing is therefore on the wall if the clause is not taken back and reconsidered.

I shall move on to the second “who”. The first “who” I focused on was who can issue the necessary authorisation, which is the designated senior officer. Under clause 53(2), that person can

“authorise any officer of the authority to engage in any conduct”.

It goes from a relatively low-level authorisation to somebody even further down in the authority having to get on with the job of obtaining data.

The breadth of what can be done is outlined in clause 53(5), which states:

“An authorisation…may relate to data whether or not in existence at the time…may authorise the obtaining or disclosure of data by a person who is not an authorised officer, or any other conduct by such a person, which enables or facilitates the obtaining of the communications data”—

so it goes beyond the specific authorisation to the facilitation—

“and…may, in particular, require a telecommunications operator who controls or provides a telecommunication system to obtain or disclose data relating to the use of a telecommunications service provided by another telecommunications operator in relation to that system.”

It is a very broad provision.

That enables us to see the amendments in their proper context. There are three categories of amendment. The first category is to be taken as a set and would insert some rigour and independence into the process by requiring judicial commissioners to sign off the necessary authorisations. The second set of amendments, which we will come to in due course, seeks to amend the threshold to provide a meaningful threshold for the judicial commissioner. To call clause 53 as drafted a set of safeguards is to mis-describe the words on the page.

Oral Answers to Questions

Suella Braverman Excerpts

Thursday 15th October 2015 Commons Chamber

[Nicky Morgan]

I thank my hon. Friend for that very practical suggestion. I am sure that my officials have taken a careful note of it, so we will go away and see how and when we can make it happen.

[Suella Fernandes (Fareham) (Con)]

11. What steps she is taking to increase the number of girls studying science, engineering and maths at school and university.

[The Minister for Women and Equalities (Nicky Morgan)]

In the week in which we celebrate Ada Lovelace day, let us be clear that we cannot allow any girl to grow up thinking that some careers are off limits because of their gender or background. It is almost exactly one year since we launched the fantastic Your Life campaign, which is encouraging more and more girls to consider careers in STEM—science, technology, engineering and maths—related fields. As I have said previously in this House, the UK needs 83,000 engineers a year over the next 10 years, and, to be frank, they cannot all be men.

[Suella Fernandes]

I am pleased that record numbers of girls are studying STEM subjects at school and university. I recently crossed the border into my neighbouring constituency of Gosport—that of the Under-Secretary of State for Women and Equalities and Family Justice, my hon. Friend the Member for Gosport (Caroline Dinenage)—to visit the defence technology company QinetiQ, of which she is an enthusiastic supporter, to support its powerboat challenge, in which it engaged directly with local schools to encourage their pupils to study STEM subjects. What more can local businesses like QinetiQ do to engage directly with business so that young people, particularly girls, take up these subjects?

[Nicky Morgan]

The excellent work that QinetiQ is doing demonstrates how girls’ aspirations can be broadened by engaging with local businesses. Its managing director and its apprentice of the year are both female, which is a good start. We are working with British Chambers of Commerce to explore different approaches to school and business partnerships. Last year I announced that we would fund a careers and enterprise company to strengthen links between employers and young people so that they can act in a broad range of careers and so that, at a young enough age, they are inspired by the careers opportunities that are open to them and nobody says that any doors are shut to them.

Oral Answers to Questions

Suella Braverman Excerpts

Thursday 2nd July 2015 Commons Chamber

[Kelly Tolhurst (Rochester and Strood) (Con)]

4. What steps the Crown Prosecution Service has taken to improve the conviction rate for rape and domestic violence in the past two years.

[Suella Fernandes (Fareham) (Con)]

6. What steps the Crown Prosecution Service has taken to improve the conviction rate for rape and domestic violence in the past two years.

[The Attorney General (Jeremy Wright)]

Over the past two years, the Crown Prosecution Service has worked with the police to increase the number of referrals for rape and domestic abuse. As a result, the number of people prosecuted for those offences last year was the highest ever. However, more is being done to increase conviction rates, particularly in rape cases, through better training and specialisation among prosecutors and better presentation of cases to juries.

[The Attorney General]

I welcome my hon. Friend to her place. She is absolutely right that there is variance in the statistics, but it is worth noting that there is a difference between what used to happen to bring about those unsuccessful outcomes and what happens now. A large proportion of unsuccessful outcomes in these cases are the result of jury acquittals. The proportion that results from victim issues or discontinued cases is going down. It is important that we do what we can to help juries reach the right conclusion in each case. She will know that I have visited her constituency in the past, as have many hon. Friends. We rather hoped that she would be in a position to ask questions in this House as a result, and I am glad that she is. I will be happy to visit again.

[Suella Fernandes]

I declare an interest as a barrister, and indeed as a member of the same chambers as the Attorney General. I welcome the recent statistics showing the highest ever conviction rate nationally for rape and domestic violence cases, but does he share my concern about the figures in Hampshire, where the conviction rate for rape fell in 2014-15? What action will he take to address that?

[The Attorney General]

I welcome my hon. Friend to her place—I am delighted that she has joined us. This must surely be the safest place to say that there can never be too many lawyers in the House of Commons. [Interruption.] It is the safest place, but still not entirely safe.

It is a matter of concern that the conviction rate in Hampshire is not higher. As I mentioned in my previous answer, we need to look at the factors that are bringing about unsuccessful outcomes. As my hon. Friend well understands, it is not true that acquittal is the wrong outcome in every case, but we need to do everything we can to ensure that cases are presented robustly to juries so that they can reach the right conclusions.

--- Later in debate ---

[Caroline Dinenage]

The hon. Lady makes a very good point, and I am very happy to look at the charity that she mentions. We have to look at the individual needs of mothers, particularly if they are sole carers, because in many cases we must consider what will happen to the children if their mothers are in prison. Judges look at every case individually and take into consideration whether mothers have caring responsibilities, and we know that they will continue to do so.

[Suella Fernandes (Fareham) (Con)]

16. What steps the Government are taking to reduce the gender pay gap.

[The Minister for Women and Equalities (Nicky Morgan)]

As we discussed in the House only yesterday, the gender pay gap has fallen to its lowest level ever, at 19.1%, and has been virtually eliminated among full-time workers under the age of 40. We remain determined to eliminate the gender pay gap for all, which is why we will require larger employers to publish gender pay information. We will publish an initial consultation on that soon, with a view to making regulations as soon as we can.

[Suella Fernandes]

We heard the views of many Members in an important debate yesterday. In my constituency, the gender pay gap is about 29.8%, which is above the national average. Does my right hon. Friend agree that we must all do more to highlight the importance of tackling the gap?

[Nicky Morgan]

I entirely agree that it is crucial that we continue to raise awareness of the gender pay gap among employers and employees. I am sure that as the new champion for her constituency, my hon. Friend will do that. One way is to challenge gender stereotypes in schools through the Opening Doors project, which I know Cams Hill school in her constituency is participating in.