Investigatory Powers Bill
Victoria Atkins ExcerptsTuesday 7th June 2016
(8 years, 5 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 7 June 2016 - (7 Jun 2016)
Ms Harman
It sounds as though the Minister is well under way to solving that problem, so that is encouraging.
My next point was considered by the Joint Committee on Human Rights and has been echoed throughout the House. We do not want the provisions in this legislation to contain less protection for journalistic material than the Police and Criminal Evidence Act 1984 did. That Act relates to a very different world and refers to the journalist’s notebook, whereas we are considering communications data, but a key point is that the relevant journalist or media organisation is given notice when a warrant is being applied for so that they can make representations as to why one should not be granted in order to protect their sources. We are not talking about journalists who are up to their necks in criminal activity—that is not the issue. The issue arises from applications for material that relates not to any criminal activity but to a journalist’s work. Can we ensure that journalists are put on notice, because of the special status of journalistic material, so that the authorising authorities have the benefit of hearing from journalists or media organisations before a warrant is granted?
I appreciate that the Minister has already responded to those issues and has put in additional protections, such as taking the non-statutory code and putting it on the statute, but the issue of notice still remains, which is why we tabled our amendments and why they have gathered support. I welcome the Minister’s confirmation that he will look further at the matter, but other members of the Joint Committee on Human Rights in the House of Lords, and many other Members of the Lords, will want to consider it. Nobody wants an unjustified fettering of the ability of the security services and the police to keep us safe. The point in the intervention of my right hon. Friend the Member for Leigh (Andy Burnham) was absolutely spot on. We are all in favour of the same thing here, but we must ensure that, at the end of the process, we have the right balance not only for journalists but in many other respects.
Victoria Atkins (Louth and Horncastle) (Con)
I shall speak to new clause 18 and amendment 207. I note that these are probing measures tabled by my hon. Friend the Member for Stevenage (Stephen McPartland), and I also note the assurances given by the Solicitor General. However, given the concerns raised by the SNP, I thought it may be helpful to give some examples of how the organisations in schedule 4 need these powers and how they contribute towards the criminal justice system in our country.
We are speaking about communications data, not about bulk warrants or intercept warrants; we are discussing the who, what and when of communications between suspects. The criminal justice system sees thousands of prosecutions brought each year by the organisations listed in schedule 4. The Department for Work and Pensions prosecutes benefit fraud, and I am sure we all support it on that. It conducted approximately 600,000 investigations last year, and communications data can be invaluable, particularly in dealing with conspiracies to defraud, in showing links between conspirators and the timing of their communications.
New clause 18 excludes one of the largest and most important investigating agencies: Her Majesty’s Revenue and Customs. It investigates a huge range of offences, from tax fraud to cigarette smuggling and the criminal exploitation of HMRC’s repayment system. The seriousness of some of these offences can be summed up in the offence that I prosecuted many times on its behalf: cheating the Revenue, which attracts a maximum sentence of life imprisonment. The Joint Committee heard evidence from HMRC that last year it made 10,000 requests for communications data, which supported 560 investigations, in cases involving a loss to the Treasury of £2 billion. If that is not a serious investigating organisation that deserves our help in investigating and prosecuting criminal activity, I do not know what is.
The injustice does not end with HMRC, and I will give just two more examples, as I am conscious of the time. The Financial Conduct Authority regulates the financial markets, and the banking, financial and insurance industries, among others. In a £10 million insider dealing fraud case, in which I was instructed, we were able to build an electronic reconstruction of a day in the life of an insider dealer. It went from the moment when a memory stick was inserted into a computer to download the price-sensitive information, to the handover of the stick to a co-conspirator at another bank, to the material being uploaded on to webmail and messages being sent out to the defendants to get trading on these stocks. The FCA operates in the digital world, by definition, and it made more communications data requests last year than 20 police forces that are cited in new clause 18.
The second example, mentioned by the hon. Member for Paisley and Renfrewshire North (Gavin Newlands), is the Health and Safety Executive. It prosecutes employers who kill and maim employees and members of the public in the workplace. These are highly specialised cases, which could encompass any workplace, from building sites to chemical factories and care homes. Last year, the HSE conducted 3,280 investigations, resulting in 535 prosecutions in England and Wales.
I know that these are probing measures and that my hon. Friend the Member for Stevenage is raising important issues, particularly on access for child protection units and others, but we must not lose sight of the important role that many of these organisations play in the criminal justice system and their need for their power to prevent and detect crime.
Several hon. Members rose—
Victoria Atkins
It has been my privilege to serve on the Joint Committee on Human Rights and the Bill Committee. I want to challenge gently the tone adopted just then by the right hon. Member for Orkney and Shetland (Mr Carmichael), because I felt during the Joint Committee and in Committee that the people whom the Bill seeks to protect and those who sadly fell on 7/7 and in terrorist atrocities since were haunting me and many other members of those Committees.
Victoria Atkins
No, I am going to finish this point. What is more, I met the police officers and members of the security services who hold our safety in their hands, and they do that for reasons of good faith, not bad faith. I regret the tone that has been taken, but I am conscious of the time—
Victoria Atkins
I am not going to give way. The Joint Committee heard from 59 witnesses in 22 public panels. We received 148 written submissions, amounting to 1,500 pages of evidence. We visited the Metropolitan police and GCHQ, and we made 87 recommendations, more than two thirds of which have been accepted by the Home Office.
Victoria Atkins
No, thank you. The Bill Committee considered nearly 1,000 amendments, and in it the Government were led with style and eloquence by my right hon. Friend the Minister for Security and my hon. and learned Friend the Solicitor General. It was a pleasure to hear the forensic examination of the Bill by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and contributions from the hon. and learned Member for Edinburgh South West (Joanna Cherry). The scrutiny, care, considered argument and good will of those involved in the past seven months has improved this Bill. I have absolutely no doubt that it will help the security services, the police and other law enforcement agencies to protect us and to prosecute those who mean us harm. It is world-leading legislation and I commend it to the House.
Investigatory Powers Bill
Victoria Atkins ExcerptsMonday 6th June 2016
(8 years, 5 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Manuscript Amendments 6 June 2016 (PDF, 16KB) - (6 Jun 2016)
Victoria Atkins (Louth and Horncastle) (Con)
Section 6 of the Human Rights Act requires public authorities to have regard to the Act in any event, so I wonder what advantage the hon. and learned Gentleman thinks referring to the Act in the Bill will have.
Keir Starmer
I am grateful for that intervention, because it drives us back to the point of the privacy clause, which we debated in Committee and which has been debated elsewhere. It is important for three reasons. First, this is a statement of principle about the important interests and duties running through the Act, and it is important to have that statement in the Act. It avoids inconsistency and reminds decision makers of the importance of taking into account privacy, the integrity of data, human rights and so on in all cases, so this is a matter of principle.
The second reason why our new clause is important is that of practical considerations. I worked with the Police Service of Northern Ireland for five years in relation to its compliance with the Human Rights Act. Having structures and decision making written into everything it did helped it to reach better decisions, and I am sure it is the same for other police forces and for public authorities. Never underestimate the practical application that such a clause has in real time for people in public authorities trying to do their job. The third reason—I will come back to this in a minute—is that our new clause gives real teeth to the test that the judicial commissioners apply, because there would be a link between the privacy clause and the test.
Ms Harriet Harman (Camberwell and Peckham) (Lab)
I rise to speak in support of amendment 146, which stands in my name and those of fellow members of the Joint Committee on Human Rights. The Committee conducted legislative scrutiny of the Bill and published our report—a unanimous report—on 2 June. Like previous speakers in this debate and everyone in their right mind, we wanted to make sure that the Government and, acting on behalf of the Government, the security services have the right intercept powers to keep us safe, while at the same time respecting privacy and not invading it abusively. I thank the members of the Committee who worked on that scrutiny, the legal adviser to the Committee, Professor Murray Hunt, the Committee staff and those who gave evidence.
Because I hope to catch your eye when we debate the next group of amendments, Mr Deputy Speaker, I shall speak briefly to amendment 146, echoing the points made by the hon. and learned Member for Edinburgh South West (Joanna Cherry), who speaks on behalf of the Scottish National party. The amendment is about the role of the judicial commissioners. In essence, the commissioners are doing two things. First, they approve warrants issued by those who have the power to issue warrants—a very important role. A warrant that is not approved is a dead duck; it has to be stopped there and then. The role played by the commissioners in the approval process is set out in clause 21 and subsequent clauses. Secondly, the commissioners have an oversight and reporting function, which is set out in clause 194. They review and oversee the authorisation of warrants; they report to the Prime Minister and that report has to be published to Parliament.
It is a problem to have the same person both carrying out approval of a warrant and overseeing their approval of the warrant. The purpose of having all these measures in the Bill is to get them right. I pay tribute to the Home Secretary for her determination to understand and respond to the concerns. I hope that she will respond to the concern I am setting out now. I am not sure it is necessary to have two separate organisations, as the SNP proposes in its amendment; but I am absolutely sure that there has to be some separation of functions. Oversight of oneself is not realistic oversight.
Victoria Atkins (Louth and Horncastle) (Con)
Will the right hon. and learned Lady give way?
Victoria Atkins
The Joint Committee on the draft Bill debated this matter in some detail. We concluded that it is better for judicial commissioners to have experience on both sides of the fence, as it were, just as at the criminal Bar barristers tend to prosecute and defend, so that they have knowledge of both sides. Secondly, the Committee was optimistic that it would help to attract judges of the right calibre to apply to be auditors.
Ms Harman
It might well be useful for commissioners to have experience of both functions, but not at the same time and not using the same team of staff. I think ours is a relatively modest but important proposal. I am sure the hon. Lady can see that the arrangement could be clarified to create some sort of Chinese wall between the two functions. We are not suggesting that the functions be performed by separate organisations, but the hon. and learned Member for Edinburgh South West may be about to persuade us all that separate organisations are needed.
Stephen McPartland
I will certainly meet the Minister halfway, because I will not call a vote on my provisions, or vote against him on this aspect of the Bill. Obviously, I would like to get my own way, but I appreciate that this is about compromise, and both Ministers have been very good at compromising over the course of the Bill.
On error reporting and notification, it is worth noting the views expressed in sections 613 to 622 of the report by the Joint Committee on the draft Investigatory Powers Bill. I will not read them all out—you would not like that, Mr Deputy Speaker—but I would like to pull a few highlights out. The report states:
“Clause 171 provides that the Investigatory Powers Commissioner must inform a person about any ‘serious error’ when the Investigatory Powers Tribunal agrees the error is serious”,
and when that is in the public interest. But why would it ever be in the public interest to inform somebody that the error was serious? I cannot imagine that it would ever be in the public interest to do so, so they would never be informed.
The report also noted that the Bingham Centre for the Rule of Law felt that the approach in the draft Bill to error reporting was a matter of profound concern. Similarly, the Interception of Communications Commissioner’s Office believed the provisions in the clause were weaker than the current well-established powers. The requirement that an error should cause significant prejudice or harm was also criticised for setting a very high bar. In addition, the test was criticised by the Law Society of Scotland, Privacy International, the Interception of Communications Commissioner’s Office and Amnesty International UK for being poorly defined.
Victoria Atkins
I will be grateful to my hon. Friend if he can answer this question; it may negate the need for me to make a speech on this point. I have looked very carefully at new clause 16 and, indeed, new clause 1, and I cannot find any reference to “error” in them. New clause 16 seems to be a general clause of notification to anyone who is subject to a warrant. Is that correct?
Stephen McPartland
I certainly do not take any credit for being good at drafting new clauses. New clause 16 may not mention “error”, but I think it is mentioned in amendments 189 to 195, with which it should be considered. In “A Question of Trust”, David Anderson, QC, recommended that the judicial commissioners be given the power to report errors to individuals. I appreciate that the Minister has moved towards my point of view.
In conclusion, the Joint Committee made two recommendations. The first was that referral to the Investigatory Powers Tribunal was unnecessary and cumbersome and created a brake on the notification of errors. The second was that the error-reporting threshold should be reviewed so that it was more specific and defined.
Tom Tugendhat
It is a great pleasure to speak on Report, particularly as the heirs of Walsingham and Egerton are on the Treasury Bench sitting in judgment over a Bill that will shape our civil liberties. In their day, Walsingham broke the code, and Egerton tried Mary, Queen of Scots. The techniques that they used are still in active use today, but they have been updated. It is a question no longer of codes on paper, smuggled out in brandy bottles, but of codes hidden in computer messages, apps and other forms of communication. That is why I welcome the Bill, which updates historical practice for the present day. It is essential that we put this into statute, because for the first time we are putting into a Bill what we actually mean. For years, the state has used interpretations of legal practice rather than setting out, and debating properly, what it should do. That is why I particularly welcome the joint approach to the Bill. The hon. and learned Member for Holborn and St Pancras (Keir Starmer) has been instrumental in bringing a co-operative mood to the House, and I am grateful to him for doing so.
The Bill balances privacy against other considerations. As my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) pointed out, privacy is a fundamental right of all British citizens, and one that we have enjoyed for many years. But that privacy is only worth anything if we can live in safety, not just from the obvious risk of terrorism but from the risks of child abuse, drug smuggling and other forms of violence against the people of this country. I am grateful for the fact that the Government have balanced that privacy against those threats.
I will leave it there, because there are many more amendments to come. I could address some of them in detail, and perhaps I will be called to speak again.
Victoria Atkins
I had the privilege of being a member of the Joint Committee and of the Bill Committee, so I feel as though I have lived with this Bill for many months. I will be happy to see it become law when that happens. This Bill is vital in the modern age, and it is above party politics. It is about doing the right thing for our country and for our constituents.
The Joint Committee and the Bill Committee scrutinised the Bill intensively, and I think we considered something like 1,000 amendments in the Bill Committee. I am happy to say that we managed, nevertheless, to find some areas of agreement, namely that it was necessary to introduce a Bill to set out the investigatory powers of the security services and law enforcement agencies, and to update the scrutiny and transparency of those powers and the people who use them. It is a credit to everyone, on both sides of the House, who supports the principle of the Bill.
I welcome, as others have done, new clause 5 and Government amendment 30, which will put all related criminal offences in the Bill. That will create transparency by making the misuse of these powers absolutely obvious. I want to look at two proposed new clauses that have not received the same level of scrutiny as the Bill has enjoyed; I shall endeavour to change that in the next couple of minutes. New clause 1— the notifying criminals clause, as someone remarked to me—raises grave concerns about our impact on fighting crime and terror. I am conscious that the right hon. Member for Orkney and Shetland (Mr Carmichael), who tabled the new clause, is not his place. For anyone who has not read it, it would require the police and security services to notify, within 30 days of a warrant ending, anyone who has been investigated. There is no requirement for an error to have occurred, or anything of that nature. The only requirement is that someone’s data have been investigated.
James Cartlidge (South Suffolk) (Con)
On the point about a time limit of three months, is my hon. Friend aware that in 58% of requests for communications data in child abuse investigations, the data are more than six months old?
Victoria Atkins
Very much so. That shows the time sensitivity of many investigations, and I am grateful to my hon. Friend for bringing it up. We know from evidence sessions in both Committees that 100% of counter-terrorism cases and 90% of serious organised crime cases involve communications data evidence. We are talking about very serious cases indeed. My concern about new clause 1 is that it in no way removes the risk that high-level criminals and terror suspects will be told that they have been investigated by law enforcement and the security services. Such people are more likely to be the subject of warrants because of their criminality, so we would be handing the investigations to those criminals on a plate.
Tom Tugendhat
The level of encryption available in public today is such that new clause 1 would allow criminals to hide the deeds that they had formerly left unhidden, and therefore it would expose the country to even greater threat.
Victoria Atkins
That is exactly right. My hon. Friend makes the point that I was about to make, in fact.
Victoria Atkins
Not at all. [Interruption.] It has never stopped me before. The new clause will help criminals to evade investigation, arrest and prosecution. Serious organised crime gangs and terrorists talk to each other. They compare notes on investigative activities, whether ongoing or not. It will not necessarily be the first, second or third notification that starts to hint at the methodology of the police; it may be the 20th, but none the less those hints about patterns of behaviour will begin to emerge in the criminal world. Why on earth would this House pass legislation that would give serious organised crime gangs and terrorist gangs such an advantage?
Gavin Robinson (Belfast East) (DUP)
The hon. Lady is making a powerful point, but she is talking about a fear of what may be to come. Is she aware that already in Northern Ireland, a chief dissident republican has had the case against him dropped because the judge ordered that the security service had to unveil its surveillance techniques? If that is the case already, imagine what would happen if every dissident republican and every terrorist in the country got notification.
Victoria Atkins
I am extremely grateful for that intervention, which shows powerfully just how important this is. I am conscious of the time, so I will make just one more point about new clause 1. Subsection (1)(e) sets out that people are to be told if they have been informed on by covert human intelligence sources. That means informants, in everyday language. The new clause, if passed, would help criminal gangs to find out who is informing on them—and, presumably, to do great harm to those informants, because no criminal likes a grass.
I am conscious that new clause 16 mirrors much of new clause 1. It does not, in fairness, contain the reference to CHISs, but the fact is that it will have a similarly devastating effect on law enforcement and security service operations in this country.
Fiona Mactaggart
It seems to me that the reason for these amendments is the sense that there is not sufficient accountability in the secret services and other bodies. To that end, would the hon. Lady support new clause 2, proposed by the Intelligence and Security Committee, which would ensure that there could be proper investigation by a commissioner of anything that we felt required it?
Victoria Atkins
I hesitate to do the job of my Front-Bench colleagues, and I know that the Solicitor General will respond to that point.
I will finish by saying that the amendments and new clauses on privacy proposed by the Government reflect the fact that the scrutiny of the Bill has worked thus far and has been a worthwhile exercise. I hope that new clauses 1 and 16 will not trouble this House, because the Bill as it stands is much stronger for the many months of scrutiny it has received.
Investigatory Powers Bill (Thirteenth sitting)
Victoria Atkins ExcerptsThursday 28th April 2016
(8 years, 6 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 April 2016 - (28 Apr 2016)
Joanna Cherry
It is a pleasure to serve under your chairmanship, Mr Owen. Clause 195 deals with the terms and conditions of appointment for judicial commissioners, and amendments 745 and 746 address the term of the appointment. The Bill provides for the judicial commissioners to be appointed for short terms of three years, subject to a potential rolling renewal. The amendments would extend the length of term served to six years and remove the prospect of renewal. The thinking behind that is that secure judicial tenure is designed and recognised as one of the key safeguards of judicial independence.
The provision for the judicial commissioners to be appointed by the Prime Minister and for their terms to be short and subject to renewal only at the discretion of the Prime Minister could pose a significant barrier to the commissioners’ functional or apparent independence. Three years is a very short term, and a judicial commissioner wishing to extend his or her term may be influenced in their behaviour by a desire to please the current Administration. In saying that, I take fully on board the fact that an extremely distinguished English judge, Lord Judge, has said that that is unlikely to happen, but he cannot speak for other judges or the future, just as this Government cannot speak for future Governments. That is why judicial independence is so important.
We may feel complacent about judicial independence at present. I do not mean to be pejorative about the English system, but I like to think we have proper judicial independence in Scotland—as I said earlier, judges are appointed by Her Majesty the Queen on the recommendation of the First Minister after they have consulted the Lord President and after the Judicial Appointments Board for Scotland has made a recommendation. We have judicial independence under the current system in Scotland, but those judges are of course appointed for an indefinite term, until such time as they have to retire. Under the Bill, the plan is to have judges appointed by the Prime Minister. I have heard what the Government say, but without the further safeguards we have just been discussing, judges will be appointed for very short periods of three years, at which time their renewal will come up. If the amendments are made, the term of appointment will be six years, which is probably quite long enough to be doing this sort of important and taxing work, and there will be no renewal thereafter.
The six-year terms would allow the commissioners to develop their expertise and avoid any concerns about stagnation. Importantly, six-year terms would ensure that the judicial commissioners’ tenure does not undermine their crucial independence from the Government, and the perception of their independence from the Government and from the officers, agencies and public bodies they are monitoring.
Victoria Atkins (Louth and Horncastle) (Con)
It is a pleasure to serve under your chairmanship, Mr Owen.
The point of the three-year term is surely that the Government are hoping to recruit High Court judges at the very top of their game—High Court judges who have a long career behind them and ahead of them. The idea of the three years is to give them the choice to pop out of the High Court or the Court of Appeal and do their three years, and then if they wish to return to service in the courts, they have been out for only three years. It is an attempt to encourage judges to apply, rather than to count against it.
Investigatory Powers Bill (Eighth sitting)
Victoria Atkins ExcerptsTuesday 19th April 2016
(8 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 April 2016 - (19 Apr 2016)
Victoria Atkins (Louth and Horncastle) (Con)
The hon. and learned Gentleman will appreciate I was not chairing the Committee, so this is very much my own impression of what went on. Lord Murphy was, as one would expect, very keen to accommodate the service providers and the Committee Clerks proposed several dates. We were grateful for the written evidence and formed the view we did, but it would have been nice if they could have fitted us into their busy schedules.
Keir Starmer
We probably will not gain much by arguing the detail, particularly as I was not there. The point that the service providers wanted to get across was that in principle they did want to give evidence. They gave written evidence. It was simply that the dates would not work for them as a group, rather than any unwillingness to share their concerns.
The Minister for Security raised a point about the Sheinwald arrangements and the progress being made. As I said a moment ago, these amendments are intended to foreshadow the—I hope—new world of working arrangements, which will cover not only evidence for use in prosecutions but the facilitation of the exercise of powers of this Bill in much faster time than some of the current mutual assistance agreements. The Minister made a further point about the differing views of the companies concerned. There are different views about some aspects of the Bill, but on the issues of extraterritorial application they speak with one voice.
There is an important broader issue to put on the table. As we move forward to international agreements, particularly with the US, it is very important that not only our Government but the US Government are comfortable with the arrangements, because whatever arrangements are put in place will be reciprocal.
Finally, may I hand a schedule to you, Ms Dorries, to the Minister and his team and to the hon. and learned Member for Edinburgh South West? I do not intend to speak at great length to this document, which was prepared for me. What it points out is the inconsistency in approach on extraterritorial jurisdiction. It is quite telling in a number of respects. It tracks whether there is extraterritorial jurisdiction, which clauses give rise to it, whether there is a reasonableness test or a reference to conflict of laws built in, whether it is enforced by overseas service providers, whether there is an international mutual assistance framework and whether there is an obligation on the Secretary of State to consult. What struck me when I went through the document was the inconsistencies. If they are intentional inconsistencies that can be defended, all well and good. I am simply bringing it to the Minister’s attention that we have found these apparent inconsistencies. If they are not intentional, it might be a good idea if somebody looked at them to tidy up the provisions and ensure that where they should be consistent, they are.
Victoria Atkins
I want to understand the hon. Gentleman’s understanding of how cases are prosecuted in England and Wales, if not in Scotland. Is the hon. Gentleman saying that Her Majesty’s Revenue and Customs, for example, should not have access to any of these powers? Is the hon. Gentleman saying that the investigation of economic crime that can potentially alter the GDP of another member state is not worthy of these powers? I wonder what the differentiation is between those organisations he thinks should have these powers and those that cannot. At the moment, it is not clear.
The Chair
Order. May I just ask that interventions be kept short, please, or we will be here all night? Mr Newlands.
Joanna Cherry
My hon. Friend will no doubt agree that, in Scotland at least, it is the police who investigate serious crime, under the direction of the Lord Advocate.
Gavin Newlands
The point has been dealt with, and I think we need to move on. The effect of new clause 10 —[Interruption.] I will finish, amid the chuntering. These new clauses require data retention notices to be issued only for specific investigative or operational purposes, to obtain specified data where those data are believed to be of substantial value. We do not believe, however, that the role of communications data in the investigation of crime justifies the Secretary of State’s mandate for blanket retention of historical communications data for the entire population for 12 months.
Investigatory Powers Bill (Fourth sitting)
Victoria Atkins ExcerptsTuesday 12th April 2016
(8 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 April 2016 - (12 Apr 2016)
Victoria Atkins (Louth and Horncastle) (Con)
Is the purpose of the clause to address those circumstances where, for example, the security services or police know that someone has been kidnapped, but they do not know the names of the kidnap gang or even perhaps the number of gang members? The clause is designed to enable the security services to make the inquiries they need to make to save a life.
Joanna Cherry
I think I am correct in saying that this section is directed more towards security concerns than serious crime. I will no doubt be corrected, but I can only stand by what others who deal with surveillance issues have said in their evidence to the Committee. I would also like to point to what David Anderson QC said in his follow-up evidence to the Committee at paragraphs 4 and 5.
Joanna Cherry
David Anderson, in his typically helpful, studious and hard-working way followed up his oral evidence to us with some additional thoughts in written evidence. He has a section headed “Thematic Targeted Powers” in which he says:
“I recommended that the practice of issuing thematic warrants be continued into the new legislative regime…I envisaged their utility as being ‘against a defined group or network whose characteristics are such that the extent of the interference can reasonably be foreseen, and assessed as necessary or proportionate, in advance’—for example, a specific organised crime group”.
Perhaps that answers the hon. Lady’s question. He went on to say:
“I also recommended that the addition of new persons or premises to the warrant should…require the approval of a judicial commissioner, so that the use of a thematic warrant did not dilute the strict authorisation procedure that would otherwise accompany the issue of a warrant targeted on a particular individual or premises”.
His following statement is very important. He says:
“On both counts, the Bill is considerably more permissive than I had envisaged. Thus: The wording of clause 15 (interception) and still more so clause 90 (EI) is extremely broad”.
This answers the hon. Lady’s point. Even David Anderson, who envisaged thematic warrants having some utility against a defined group or network such as an organised crime group, says that the wording of clause 15 is considerably more permissive than he had envisaged.
Victoria Atkins
The hon. and learned Lady states the opinion that clause 15 is really aimed at dealing with the security services point. It is but, may I refer her to clause 18, which deals with the grounds on which warrants may be issued by the Secretary of State? It is very clear that it can be done for national security reasons but also for the purposes of preventing or detecting serious crime.
Mr Hayes
I do not want to detain the Committee too long on these amendments, but this is an important debate, because investigation of the kind we are discussing may not at the outset be able to identify particular individuals. The effect of the amendments would be to limit the ability of warrant requesting agencies to apply for a warrant against organisations, and to require the naming of individuals. It is not always possible to do that. That includes individuals using communication devices—it may be known that someone has received a telephone call from a particular number, but not necessarily know who or where they are.
Victoria Atkins
Would a horribly pertinent example be the man in the hat in Belgium? Until this week the security services abroad did not know who that person was and were desperately trying to find out his identity.
Mr Hayes
That is an example of what I meant. There could well be people, either here or travelling here, whose identity is known only in the broadest terms. They are part of a network, a wider group or organisation, but no detail is known about them. That does not apply only to terrorist investigations; it might apply to serious organised crime investigations, in which by their nature we are dealing with organisations that desire anonymity. That means that investigations are challenging and makes the powers in the Bill absolutely necessary.
It is perfectly possible that a terrorist or criminal organisation might be seeking to travel in or out of the United Kingdom. It might not be clear at the outset which individuals will be travelling, or that all those travelling share an identified common purpose and will be carrying on the same activity, as required by the definition of “group of persons”.
It is also important to note that the Bill imposes strict limits on the scope of the warrant in relation to organisations. We need to be clear that activity against an organisation must be for the purpose of a single investigation or operation, and the Secretary of State and judicial commissioner will both need to be satisfied that the warrant is sufficiently limited to be able to meet the necessity and proportionality case. It is not just that it needs to be necessary and proportionate; it must be sufficiently limited to legitimise that.
Mr Hayes
That is an interesting point. I will take further advice on that in the course of my peroration, which will be marginally longer than it was going to be as a result.
Because we recognise that it is important that these warrants are not open-ended, we have added that important safeguard. The fact that it is in the code of practice and not on the face of the Bill does not weaken its significance. I emphasise that it must have force and will be an obligation, as I have described it.
I will come back to the hon. and learned Gentleman’s point, but first I will deal with amendments 8 and 9, which would remove the warrant requesting agency’s ability to apply for a warrant for testing or training purposes. It is vital that those authorised to undertake interception are able to test new equipment and ensure that those responsible for using it are properly trained in its use. There are, however, strict controls that govern the handling of material obtained during such tests. We believe that it is right that it should be possible for equipment to be tested in scenarios where it can be checked that it is working properly, for example by armed forces on the battlefield. It would have serious consequences for our military if they did not have the ability to test equipment so that risks and mistakes are avoided.
Victoria Atkins
Returning to the point made by the hon. and learned Member for Edinburgh South West about the man in the hat, the reason for the ability to investigate communication devices and numbers to which names may not be attributed is precisely so such a person can be identified through devices seized from suspects who have already been arrested. Is my understanding correct on that? The hon. and learned Lady accused me of misunderstanding, but may I invite the Minister to clarify?
Mr Hayes
My hon. Friend is right, and I can enlighten the Committee by saying that I have seen this in practice. At the National Crime Agency I saw an investigation live, because it happened that while I was visiting, just such a warrant was being used. The identity of a number of those involved in a very serious potential crime was not known, and a warrant was used to piece together information from what was known to prevent an assassination. I will say no more than that for the sake of the necessary confidentiality, but that capability was needed to avert a very serious crime. That warrant was highly effective, and if I needed any persuading, it persuaded me then of the significance of the power we are discussing.
To return to the point made by the hon. and learned Member for Holborn and St Pancras, thematic warrants can be modified by adding people, as I think he was suggesting, but only where it is in the scope of the original activity authorised by the warrant and the purpose does not change. It must be for the purpose that the warrant requesting agency gave without the double lock; he is right about that. However, the Secretary of State must be notified when a person is added, so there is a further check in terms of that notification. Modifications are not permitted to change the scope of the warrant. The provision is not open ended—I do not think the hon. and learned Gentleman was suggesting that it was, but he might have been interpreted as doing so.
Keir Starmer
To some extent the amendments overlap with the discussions we will no doubt have on clause 21 and new clause 5. The effect of this group of amendments is to replace the Secretary of State with the judicial commissioner as the primary and only decision-maker in relation to these categories of warrants.
This morning, the Minister said that he was surprised that we had tabled these amendments and I will give him three short answers to that. The first is that from the outset the Labour party called for judicial authorisation before the concept of the double lock was introduced. That was our primary and preferred position. Obviously, the introduction of the double lock, which involves a degree of judicial authorisation, is somewhat better than the Secretary of State being the sole determining decision-maker. Therefore the fact that we are supportive of a situation that is better than the current situation is hardly enough to knock us out from our primary position. The third position—and this is why it overlaps with clause 21—is that to some extent this all depends on what role the judges have. If they are nearer to decision-makers under clause 21, the relationship with the Secretary of State is very different from the position if they are simply long-arm reviewers. I will reserve that for the discussion we will have on clause 21.
So far as the principle in favour of these amendments is concerned, I can be clear. They have been drafted to reflect, as far as possible, the detailed proposals of David Anderson in his report. Members of the Committee have probably seen that they are deliberately drafted to reflect the approach that he suggested was right—particularly when one takes into account new clause 5. I will summarise his reasons, rather than reading them verbatim, laid out in paragraphs 14.47 and 14.57 of his report. He indicates four reasons for the proposed structure. The first is the sheer number of warrants that the Home Secretary has to sign per year. As he sets out in paragraph 14.49, there are thousands of warrants per year, details of which are in the footnotes. Dealing with those warrants is a huge imposition on the Secretary of State’s time, and they could be dealt with in a different way.
There is an important sub-issue here. Points have been made, this morning and on other occasions, about the accountability of the Secretary of State in relation to national security and foreign affairs. I understand how and why those points were made. As David Anderson points out, 70% of the warrants that the Secretary of State routinely signs off are in fact police warrants that do not raise issues of national security or matters of foreign affairs. In many respects, they are no different from the sorts of powers that the police exercise when they search and seize, or exercise other powers available to them through the usual routes of going to the Crown court. His starting point is that it is no longer sensible for the Secretary of State to handle these thousands of cases, particularly since 70% are in fact police cases, not involving national security or foreign affairs.
Secondly, in paragraph 14.50 David Anderson deals with improving public confidence. Thirdly, at 14.51 he deals with the position in the US, where there is a growing insistence that if warrants are to be complied with by those in the US, judicial sign-off of the warrant is required. David Anderson’s concern was that, unless we move to a different system, we might find that warrants would not be honoured when we needed them to be honoured in other jurisdictions. That is obviously a serious point that I know the Government have taken into account.
The fourth reason, in paragraph 14.52, is that there is an established and well-functioning system for judicial approval by commissioners in comparably intrusive measures, when applied for by the police. He lists them as property interference, intrusive surveillance and long-term undercover police operations. Other police activities that require to be warranted go straight to the commissioner, not via the Secretary of State. Since 70% of those cases are the police exercising not dissimilar powers of interception under warrant, there is a powerful argument to say that that category of cases, if nothing else, ought to go straight to a judicial commissioner. That would be modelled on David Anderson’s analysis, for the reasons that he has set out in those paragraphs.
I would like to highlight paragraph 14.56(a), because it has been said today and on other occasions that an important political accountability goes with the role of Secretary of State in relation to these warrants. Yes, that is the case to a certain level, but it must not be misunderstood. I have yet to find an example of any Secretary of State from any political party, certainly in recent history, ever accounting to Parliament for an individual warrant.
Victoria Atkins
What I genuinely do not understand about this argument is that, given that the Secretary of State is not permitted or authorised to account publicly for a warrant, how on earth will that be any different for a judicial commissioner? The nature of the material is sensitive, regardless of whether it is reviewed by the Secretary of State or by the judicial commissioner.
Keir Starmer
The point I am making is not that that judicial commissioner could be more accountable, or that there would be some forum in which the judge could go and explain. I completely accept that that is a limitation. I am meeting the argument against this proposal, which is that at the moment the Secretary of State has some political accountability which would be reduced or taken away if this amendment were accepted.
The point David Anderson makes is that it is of course a criminal offence to disclose that the warrant has been signed, so in fact the Secretary of State could not go to the Dispatch Box even in an extreme case. She would commit an offence if she went to the Dispatch Box to be held accountable for an individual decision. That is exactly why David Anderson writes as he does in paragraph 14.56 of his report. If any other members of the Committee have found an example of a Secretary of State ever actually being held accountable for an individual warrant, I personally would like to see the Hansard report of that taking place.
Keir Starmer
I have already accepted the general proposition that if some catastrophe occurred, the Secretary of State would be required or expected to make a statement, setting out what in general terms had been done. I accept that level of political accountability. I am talking about the specifics of signing off warrants and, therefore, what would be lost if the Secretary of State’s role were taken over by the judicial commissioner. There is a question of deference on national security and foreign affairs, but we will get to that when we reach clause 21, because that deals with the scope of review by the judicial commissioner. The point I was making before the interventions, however, was drawing attention to David Anderson’s paragraph 14.5, in which he sets out the reasons why the political accountability card is overplayed.
Victoria Atkins
The hon. and learned Gentleman may recall that we had the privilege of listening to two Labour Home Secretaries, Lord Reid and Charles Clarke. I asked Mr Clarke about his relationship with the security services and his experience of warrantry in the dreadful hours following the 7/7 bombings. I asked him how useful or important that was in the vital hours thereafter and his answer—I will be quick, Mr Owen—started with the words “critically important”. Does that affect the hon. and learned Gentleman’s view in any way?
Keir Starmer
No, it does not. With all due respect, thinking on accountability and safeguards in this field is on the move. The sort of regime that was perhaps thought appropriate five, 10 or 15 years ago is now accepted as not appropriate. One of the points of this legislation in many respects is to bring it up to date and make sure that scrutiny and safeguards are more powerful. The fact that an ex-Home Secretary thinks their role was very important and need not be interfered with did not surprise me, but neither did I find it persuasive.
I have probably exhausted my point. The amendments are intended to reflect the position set out by David Anderson for the very good reasons that he draws attention to in paragraph 14.56(a): the political accountability card is overplayed in resisting this argument.
Joanna Cherry
Yes, I am very grateful to the Solicitor General. I skipped ahead to modifications, so I will skip back to urgent. The purpose of the amendments is to specify that urgent warrants can be issued only when they are necessary, in an emergency situation that poses an immediate danger of death or serious physical injury, and that a judicial commissioner should be informed immediately that an urgent warrant has been issued. They also seek to reduce the period within which a judicial commissioner must decide whether to approve the issue of a warrant to 24 hours after its issue.
There were differing recommendations from the Joint Committee and the Intelligence and Security Committee. I think I am correct in saying that the ISC recommended 24 hours and the Joint Committee 48. In terms of case law, recent decisions of the European Court of Human Rights suggest that 48 hours would be an absolute minimum, so I would insist on that as a fall-back position.
Victoria Atkins
I sat with my hon. Friend the Member for Fareham and my hon. Friend and neighbour, the Member for Boston and Skegness, on the Joint Committee, where we debated this in great detail. It is right to say that it was not a unanimous decision of the Committee to change the time limit for the urgency provisions. Indeed, I said to the Committee that if that point was ever raised, I would make clear that the decision was not based on any evidence we heard. I will not say that members of the Committee drew the figure out of the air, but—[Interruption.]
Victoria Atkins
Okay, out of the air. The Joint Committee arrived at that figure on the basis of no evidence. That may assist the hon. and learned Lady.
Joanna Cherry
I am grateful to the hon. Lady for being so precise and clear about that. Essentially, the concern about clause 22 is that the scope of the urgent mechanism is extremely broad and ill defined. In my view, it could fatally undermine any safeguard provided by a mechanism for judicial authorisation or indeed judicial review in the double lock.
The Bill provides that an urgent warrant can be issued by the Secretary of State in a case where she considers there is an “urgent need”, which is not defined. We then have the three-day period. As the hon. Lady said, no specific reason has been given for the selection of three days. The Joint Committee took the view that it should be shortened significantly to provide for approval within 24 hours. I think the ISC suggested 48 hours—I apologise if I have got that the wrong way round.
The purpose of the amendments is to remove the urgent provision in the Bill altogether or to restrict it to very limited circumstances, with the urgent authorisation having to take place during a 24-hour period. The concern underlying the amendments is that in their absence, the provisions for urgent warrants in the Bill will drive a coach and horses through even the double lock provision, because they will enable the judicial authorisation part of the procedure to be bypassed in very loosely defined circumstances. That is the case as precisely as I can put it.
The Solicitor General
I am always happy to discuss matters with the Bar Council. As one of the leaders of the Bar, the hon. and learned Gentleman knows that I go to regular Bar Council meetings. I was with it on Saturday, and I listen carefully to what my friends and colleagues at the Bar have to say.
However, the example I am giving explains the situation. There might be information that is entirely innocuous to the lawyer. Let us say that there is a consultation happening. The lawyer might ask a few questions about the address and associates of the person that do not, to him or her, disclose an offence being committed, but which might, in the wider context, provide the security and intelligence authorities with evidential leads that build a wider picture of which the lawyer will be unaware. That is not the furtherance of a crime; it is innocent. What would be innocuous information to the lawyer might mean something more, because a wider context might give the appropriate agency the grounds upon which it could then make its application for warrantry.
There is a distinction. I am not saying that it will be commonplace—far from it. That is why we have worded the terms of the clause very carefully. We talk about “exceptional and compelling circumstances”. I cannot imagine a higher threshold for an applicant to meet than those words.
An additional attraction is that, for the purposes of this legislation, we do not try to define what is meant by legal professional privilege. It is a bit like the argument about parliamentary privilege—the more we try to modernise and define it, the more it ceases to exist as a meaningful concept. One has to be careful about using vehicles like the Bill to define what is a very wide-ranging principle that applies to myriad circumstances involving lawyers and their clients. Although I am in the spirit of dialogue, that is why I would strongly hesitate before adopting the amendments.
Victoria Atkins
I have listened, with great care, to the submissions made by the hon. and learned Member for Holborn and St Pancras, and I have some sympathy with the position that he has put forward. One of the issues that has consoled me is that any such warrants that are proposed will have to meet the threshold of the double lock, namely the Home Secretary and the judicial commissioner, who, I imagine, will be very careful to protect legal professional privilege. Is my understanding correct?
The Solicitor General
My hon. Friend sums it up admirably. We have taken a different approach from RIPA, and rightly so. We have listened to the concerns expressed by the wider community, not just members of the profession, and are fully cognisant of the importance of legal professional privilege. It was part of my daily professional life for nearly 20 years so, as a Minister and as a lawyer, I fully understand its importance. Therefore, I hope that the example I have given gives an important insight into what we regard as “exceptional and compelling circumstances”. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.
Investigatory Powers Bill (First sitting)
Victoria Atkins Excerpts(8 years, 8 months ago)
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Mr Hayes
Q As a follow up on that, obviously you appreciate that your recommendations on the operational case being made have been built in to what we are doing. Further to what you said about the Chairman of the ISC’s recognition of their proportionality and necessity, I suppose you would accept that any publication of that operational case will obviously be limited, because it is an operational case and as soon as you make it public to the point where it ceases to have value, it could compromise operations.
David Anderson: Yes, the agencies’ ability to protect us relies quite heavily on people not knowing exactly what it is they can and cannot do.
Victoria Atkins (Louth and Horncastle) (Con)
Q I will ask just a couple of questions, if I may, Mr Anderson. Looking at the operational case for bulk powers, the Home Office has stated:
“There is clear evidence that these capabilities have…played a significant part in every major counter terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since November 2014...enabled over 90% of the UK’s targeted military operations during the campaign in the south of Afghanistan…been essential to identifying 95% of the cyber-attacks on people and businesses in the UK discovered by the security and intelligence agencies over the last six months”.
They have also been of great use in serious organised crime and paedophilia investigations, as we know. Are those factors that you and others have taken into account when assessing whether we need bulk powers, and how critical they are to national security and serious organised crime investigations?
David Anderson: I saw and heard enough to persuade myself of the necessity of bulk interception powers and bulk data retention of the type we were describing—phone logs and emails and so on. I did not look at equipment interference, for example, because that was outside my remit, and the query that I raised on that earlier was really the same query that the Intelligence and Security Committee has raised. If you define the targeted powers so broadly as to encompass almost anything, what is the additional utility of a bulk power? I am not persuaded on that simply because I did not do the exercise.
Victoria Atkins
Q By way of conclusion, you gave evidence to the Joint Committee scrutinising the draft Bill in November 2015 and at that time you said it gave effect to 90% or more of the recommendations in your report entitled “A Question of Trust”. Now that the Government have responded to the Joint Committee’s report and made further amendments, how much closer is the Bill to your report’s recommendations?
David Anderson: If I may say so, I thought that it was an excellent report and I was very pleased to see that the Government had given effect to the great majority of those recommendations.
Suella Fernandes
Q I have two questions. On the double lock and the judicial review test, concerns were expressed by witnesses to the Joint Committee about two issues. The first is the access to evidence by the judges and by the Ministers or the Home Secretary in the process of considering warrants. What would be the access to evidence by both parties involved in the double lock? Would it be the same or different?
David Anderson: I would certainly assume that the judges would have access to all the evidence that the Home Secretary or the Secretary of State had access to. I believe I have actually had a private assurance that that would be the case. I am afraid I have not checked to see whether that is in the code of practice, but plainly it ought to be, because this is not a rubber-stamp and nor is it simply a test of rationality or process. If it needs to, it should involve a proper look into these issues of necessity and proportionality. I was delighted to note that the Foreign Secretary said as much when he wound up the debate on Second Reading last week.
Peter Kyle (Hove) (Lab)
Q I, too, am not a lawyer but, unlike Mr Hoare, I do not apologise for it. Mr King, it was quite striking when you gave a flavour of the quantity of data that is being harnessed. Do you know whether that has ever led to an unlawful arrest, or a wrongful arrest?
Eric King: No. At the moment we have almost no visibility on how our security and intelligence agencies work on a day-to-day basis with our National Crime Agency. We know that they co-operate very regularly and we know there is a lot of material that is shared around, particularly for organised crime circumstances. I imagine that lots of the relevant material is passed to the NCA and others, and that will lead to arrests and occasionally presumably also unlawful arrests. But no, that is not material that is in the public domain.
Victoria Atkins
Q Mr King, there was a phrase you used quite a few times during your evidence. That is, “We don’t know.” How long have you worked for the security services?
Eric King: I don’t work for the security services.
Victoria Atkins
Q How many intercept warrants have you prepared or reviewed?
Eric King: None.
Victoria Atkins
Q So, it would be fair to say that there is a great deal about the workings of GCHQ and other security services that you simply do not know about.
Eric King: Yes. In my evidence that I wrote to the Joint Committee I set out my frustration at my inability to be able to probe at the heart of the issues on this. We are in a much stronger position now democratically, I believe, with so much more material that is available. That has led to court cases and the Investigatory Powers Tribunal that has found unlawful actions by GCHQ. Without that material being published, we would not have been successful in those cases. I wish there were more but I do not have it all, I am afraid.
Victoria Atkins
Q I am driven to ask, Mr King, against your evidence that you do not know much about how security services work, how many lives you are willing to sacrifice for your very pure plan of privacy?
Eric King: None. I do not think that any lives should be sacrificed for a pure view of privacy. We need both; we need security and privacy. Both are values that we hold in this society and are values that we should be ensuring that we get right in the Bill. That is why it is so important that we have long scrutiny on this because we should not simply provide an unlimited set of powers to our security and intelligence agencies. They must have some, and they must be formidable powers, but they need to be checked.
They need to be provided for by Parliament. We need to have proper authorisation and oversight for that. That has been my work for the past five years. So, no, while I do not hold a security clearance, it does allow me to come before you and talk about all the things that I do know. Regrettably, if I did hold a security clearance, I would not be able to be in that position.
Matt Warman (Boston and Skegness) (Con)
Q Building on that, the Joint Committee did ask for an operational case for bulk powers to be published, and that has been seen and assessed by the ISC who do have the security clearance that you do not have, who do have visibility on all of the things that you are not able to see. The ISC says that they are happy with that operational case. It seems to me that the more people know about this, the more comfortable they are with that operational case. I wonder whether you are questioning their judgment or simply saying that you disagree.
Eric King: No. It is certainly true that the more you see about some aspects of agency practice, you do get more reassured. Certainly, in the process of Investigatory Powers Tribunal cases that have taken place, I was pleased that there were areas that had safeguards when I did not originally think there were.
I have also been fantastically disappointed in other areas, where I thought there should have been very obvious safeguards, such as areas of legal professional privilege that were found wanting and unlawful by the IPT. I am afraid I have become a terrible judge on which bits I think the agencies have got right and which bits they have got wrong. I seem to be very poorly predicting it. On the operational case, I think the issue here is that we need a whole range of experts outside the ISC to be looking at this. I am not sure that it is the perfectly placed organisation or body to be looking at this. It has known about these powers and approved of them right the way through. I think that at this time, now that they are being put before Parliament plainly for the very first time, we should be looking to do what they have done in the US, which is to have an independent scrutiny of many of those cases, so that you can test them.
It is not enough simply to provide a list of cases where this worked. They need to be really looked at, because, as we found in the US, some powers that many thought would work, like the bulk acquisition of communications data, turned out not to be terribly effective. The 64 cases that the agencies in the US put forward, to say that these were powers that were needed, turned out to be false. Only one was of relevance, and it was not a terrorism case. So it is vitally important that we scrutinise them and have the time to do so.
Joanna Cherry
Q If the Government had given you more resources for more boots on the ground, would it have been possible for the security services perhaps to have had targeted surveillance on lower priority targets prior to this particular dreadful murder?
Lord Evans: There is no doubt that to some extent intelligence activity in counter-terrorism is scalable. What has happened since 9/11 is that the resources available to the Security Service and the other agencies have increased very considerably under both Governments—or all three Governments, if you want to put it in those terms. We have therefore probably got within the Security Service three or four times as much resource as we had previously.
There has been a very considerable uplift, but it is not just a question of people. Importantly, it is also a question of powers. Your capability to cover and monitor threats is not very often, although it sometimes is, a matter of boots on the ground; it is a matter of the overall toolbox available. One of the attractions of digital intelligence and the sort of powers that are outlined in the Bill is that it enables considerable coverage of threats without having to deploy lots and lots of people following people around and so on, which in some ways would be more intrusive.
Victoria Atkins
Q We talk about the security services and the other agencies as block organisations, but of course the quality and effectiveness of an organisation depend on the people who make up that organisation. Could you give us, as far as you are able, an assessment of the qualities and character of the people who work for the agencies that you have led?
Nigel Inkster: In the United Kingdom, we like to maintain the position that intelligence and security work is a high-status profession. We look for quality people who might otherwise go into areas such as the law, merchant banking and that sort of thing. That is the level that we are pitching for, and that is not always the case around the world. In that regard, the United Kingdom distinguishes itself in the right way, in my view. We have very well educated and well motivated people. In my service, for example, we had people joining us in the wake of 9/11 who had taken very significant salary cuts and left high-paid jobs in the City to come and do this work precisely because they were motivated by and committed for what we regarded as the right reasons.
During my time in SIS, I was responsible inter alia for compliance with all the different oversight mechanisms to which we were subject. I had extremely long conversations with the various commissioners responsible for overseeing those activities. In all cases, their judgment was that the people we employed were highly motivated, took their responsibilities seriously and understood the powers that they had, the need to act lawfully and the need to use those powers in a wise, measured and proportionate manner. I think we are very fortunate as a country.
Lord Evans: I would agree with that. I think we have employed people who are intellectually able, are motivated by public service and are ethically sensitive. It might be useful to the Committee to invite the Clerk to find comments made by Lord Brown of Eaton-under-Heywood, a former Supreme Court judge and former intelligence commissioner, when the 2015 Counter-Terrorism and Security Bill was being discussed in the House of Lords. He gave a very, very strong endorsement of his experience of the quality and integrity of the members of the intelligence services that he had seen. If you want an independent voice, rather than a voice from inside the agencies, that might be worth finding.
Victoria Atkins
Q In the nightmare scenario that there was a wrong ’un in the agencies, how would they be able to find that person and prevent them from misusing their powers?
Lord Evans: It is inevitably the case that you cannot ensure that everybody in the service is brilliant and saintly, because it’s human nature. As a result, we maintain a strong, continuing vetting procedure. Your vetting is reviewed on a regular basis and it is built into the way we do our appraisal to raise security-related issues. Also, particularly in the management of access to sensitive information, there are arrangements to ensure independent oversight of what is being done on the systems that the service has in place. In the same way that, if you were running a trading system in a bank or something, you would monitor the activities of the traders to try to identify improper activity, something similar is applied to the systems operating within the intelligence services. We rely on good recruitment and on continuing security vetting, but we also have some wired-in ways of trying to identify misuse of official resources for personal use or whatever.
Peter Kyle
Q I would like to turn your attention from the efficacy and professionalism of your staff to that of the politicians you have had to deal with over the years. You have had to have relationships with several different Home Secretaries in your time. Have you always been able to get the time and attention you need from each of them at the moment at which you need it?
Lord Evans: I served under four Home Secretaries from both the Labour party and the Conservative party. I saw the Home Secretary without fail once a week, and quite often twice a week. All of them took a great interest in the work that the service was doing and its operations, and were regularly briefed. From that point of view, I think we were given very good airtime. In addition to that, there is the question of the time to look at warrants. They were not presented by the director general but were processed and nominally presented by the Home Secretary’s officials, so on top of that there was a lot of time spent by Home Secretaries on warrants. I can say, without going into great detail, that they did not all go through with a tick. Occasionally, warrants would come back and they would say, “Actually, the Home Secretary doesn’t want to sign this.”
Investigatory Powers Bill (Second sitting)
Victoria Atkins Excerpts(8 years, 8 months ago)
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Suella Fernandes (Fareham) (Con)
Q There has been a description of Tor as a facility that allows digital abuse of anonymous online activism. It is linked to encrypted information. I want you to say a bit about what effect encryption has on some of the work that you are involved with?
Alan Wardle: A lot of the activity that we take for granted online—shopping, banking and all the rest of it—could not be done without encryption, but of course, as with all these tools, encryption can be used for bad purposes by bad people. Similarly, with services like Tor and Freenet—the dark web—in the cases that we are concerned with, you get your most highly committed and dangerous offenders, quite often, particularly sharing very explicit images or videos of children being abused. Those services enable them to hide there. The police do the best they can, but, again, for a lot of that they will be dependent on traditional undercover techniques.
I think there is a question that is—I say this respectfully —beyond this Committee’s remit and beyond many of our remits. The direction of travel generally is that we are seeing greater moves to encrypt data as a matter of course, with things like Google Chrome browsers and so on. With browsers such as that, internet service providers cannot put in place the kind of protections they have, so they do not know what is going on there. That is a direction of travel and something that is worrying. It is clearly a global issue, but the police not being able to track what is going on due to increasing levels of encryption is a worry.
Victoria Atkins (Louth and Horncastle) (Con)
Q Just to pick up on the point made by the hon. and learned Member for Edinburgh South West about the missing child, is it right that, sadly, the victims of sex grooming rings do not surround themselves with friends and parents, because one of the tools that the groomers use is to isolate the victims, so that they have no one they can turn to in their hour of need?
Alan Wardle: That can be true. They can even turn the child against their family and friends as well.
Victoria Atkins
Q So in those circumstances, as you have said, the police need every tool that they can get to help those very vulnerable young children.
Alan Wardle: Absolutely. Again, as I have said, the issue of grooming is often about a period of time and establishing patterns of behaviour. Being able to gather evidence from a range of sources is really important.
Lucy Frazer (South East Cambridgeshire) (Con)
Q Following on from that, in your work in the NSPCC, do you always see a willingness for children to open up and to tell people in a position of authority personal facts about themselves and their friends, or can it be quite difficult to coax out information about children who are friendly with the vulnerable?
Alan Wardle: It will depend. Generally, it takes quite a lot for a child to come forward and disclose. In recent years, we have seen a huge increase in the number of children who are reporting sexual abuse generally. It is going up across the UK, and was up by about a third last year. A large part of that is because of a greater willingness of children to come forward and talk about the abuse that has happened to them, but we know that it can take decades for people to come forward and talk about abuse.
What we are talking about, particularly sexual abuse, is a very personal thing, so the idea that a 15-year-old who is being groomed will just walk straight into a police station and start disclosing all these very personal things is generally not quite how it works.
Byron Davies (Gower) (Con)
In my experience, the UK is regarded as a world leader in intelligence-led law enforcement and I am sure that you agree that the Bill will enhance your capability. Can you tell me how important to your work it is that this legislation applies extraterritorially?
Chris Farrimond: It is rare for serious crime to be investigated and to have no international aspect to it at all. Certainly in the case of the National Crime Agency, almost every single case that we investigate has got an international aspect to it, but I suspect that that is the same for both my colleagues as well. That means that communications data will almost certainly be held in a third country at some point, because we have been communicating with people in other countries. The extraterritoriality will at least give us the ability to ask for those data. I do not doubt that there will be some complications when it gets compared with the host nation legislation along the way, but, nevertheless, at the moment we have a very lengthy process to get material back from other countries, so if this can help in any way, shape or form in speeding that up, that will be a good thing.
Richard Berry: It certainly is a strategic priority for law-enforcement policing to look at how we can ensure, as Chris said, this fragmentation of data across server farms, in clouds and across several countries is increasingly a challenge for us, so any legislation that can help with that process will be particularly useful.
The other point that I would make, building on what you said in your introduction, is also quoted by the commissioner in the 2015 report. Communications service providers, certainly in the US, very much favour the British SPOC system, because there is a dedicated, rigorous system, whereas they could perhaps be approached individually by—I think, to quote them—one of “10,000 FBI agents”, all adopting a slightly different process. So we have got the right systems in place; I think it is really the relationships and the access that is critically important.
Simon Grunwell: I will just add that the internet obviously provides mobility and anonymity. We could have an attack from anywhere in the world, online, so we need to keep pace effectively with digital changes. Sometimes the only clue that we have as to who is criminally attacking us is a digital one. The ability to go extraterritorial to pursue that one clue could be vital.
Victoria Atkins
Q In the Government’s response to the pre-legislative scrutiny, they refer to a sample of 6,025 referrals to the Child Exploitation and Online Protection Centre—CEOP—with which, I imagine, Mr Farrimond, you are very familiar. It says that of those more than 6,000 referrals, 862 could not be progressed and would require the ICR provisions in the Bill to have any prospect of being progressed. In other words, for at least 862 paedophiles out of that sample, you can go no further because you do not have the tools. Does that accord with your day-to-day working knowledge of this field?
Chris Farrimond: Yes, we get around 1,500 referrals per month, some 14% of which we cannot resolve. We cannot take them any further. Whether it is that number of paedophiles, or whether it is a smaller number who are sharing the same images, we cannot be sure, but the bottom line—the important thing—is that we cannot protect the child because we cannot resolve the data.
Victoria Atkins
Q Focusing on the point you have just made about protecting the child, a witness this morning referred to the collection of nude images and the security services apparently running facial recognition techniques on those images. Are such methods used to try to identify child victims so that law enforcement can find them?
Chris Farrimond: Yes, of course.
Victoria Atkins
Q Finally, on the extraterritoriality point, Europol is the EU’s information and intelligence-sharing agency in The Hague. What sort of data do law enforcement across Europe share, through Europol, to try to tackle serious organised crime and for counter-terrorism?
Chris Farrimond: Quite a lot, actually. We feed into the Europol databases. We also, in fairness, have bilateral relationships, particularly when it comes to specific investigations, but for criminal data on themes, trends and so on, we will feed it into Europol to see if there are any cross-matches with any other country experiencing the same criminality.
Victoria Atkins
Q So in those two areas—counter-terrorism and serious organised crime—this legislation could help not just our country, but our neighbours overseas as well.
Richard Berry: Yes, absolutely. From experience, I was involved in running a national operation on human trafficking, and we basically created a dataset from a significant amount of intelligence gained during that national operation over six months. It went straight into the analytical work files within Europol and we were able to map organised criminality right the way back to mainland China in some cases. The added value point, which is what you are making, very much comes from that sharing.
Simon Grunwell: Can I just add to that? A significant thread for us is organised tobacco smuggling, which is international by default. So it can only help.
Gavin Newlands
Q Just a follow-up to a question asked in the last panel about ICRs as they relate to mobile devices and third-party apps. You brought up easyJet earlier, and I have got an easyJet app on my phone. As far as I am aware, it creates a lot of ICRs as defined in the Bill. There is no way to differentiate between an ICR that is created manually or automatically by a third-party app. How would that limit the operational effectiveness of ICRs for you?
Chris Farrimond: To go back to my previous answer on this point, from your mobile record—the ICR from that—we would require your provider, Vodafone or whoever, to help us to understand which flight provider you were using. If they came back to us and said, “One of the domain names is easyJet”, we would say, “Thank you very much.” That is what we would expect from Vodafone. We would then go to easyJet and say—with the right authority signed off, obviously, and with the proportionality, necessity and everything that goes with that—“Can you tell us about his travel plans?” They would, hopefully, be able to do precisely that with the data that they hold on their flight details. But as for the actual app, all that we would look for from your provider would be to tell us that you have been making use of easyJet, and that would give us the next point in our investigation.
The Chair
Actually, on this occasion I did not ask you to be brief, but thank you for being brief in the spirit that that was offered.
Victoria Atkins
Q Just so there is no mystery—people might ask themselves, “Crikey! What on earth do local authorities need these powers for?”—what sort of offences do local authorities investigate and prosecute?
Mark Astley: Local authorities have been provided with a wide remit in legislation to assist them in investigating a wide range of high crimes and serious crimes, which can range from rogue traders to dangerous goods and fake alcohol and tobacco.
Victoria Atkins
Q In some cases, fake alcohol can be fatal.
Mark Astley: It can be fatal, yes. There was a recent case of children’s clothing that was not fire retardant. It is important for those officers to react quickly to prevent any loss of life or serious danger to life.
Victoria Atkins
Q They also prosecute housing benefit fraud, don’t they?
Mark Astley: Not any more.
Victoria Atkins
Q Do they still prosecute landlord offences?
Mark Astley: Yes. Tenancy fraud offences as well. There is also internal fraud. There was one specific case where people were setting up rent accounts and filtering thousands of pounds from within the organisation.
Victoria Atkins
Q But, just as importantly, and probably more importantly, they can also safeguard the lives of people who are renting properties from landlords who, for example, are not keeping up to date with their gas certificates.
Mark Astley: That is correct.
Victoria Atkins
Q Just to be clear, under this Bill local authorities will not be entitled to internet connection records.
Mark Astley: That is correct.
Victoria Atkins
Q I do not know whether you have already done this, but could you briefly help us with the process that exists at the moment? What will happen after the Bill in terms of your organisation getting this information?
Mark Astley: In how we deal with an inquiry?
Victoria Atkins
Yes.
Mark Astley: Inquiries come through to our organisation electronically from an applicant, and our SPOC will work with the applicant to get the application either up to standard or cancelled because it is not appropriate. Once it is up to the required standard, the application is passed over to the designated person, who will then look to authorise it for proportionality. Once that has gone through, our systems provide a court pack, which is delivered to each individual applicant, and they then have to arrange for a court attendance to get judicial approval.
Differently, in Scotland they also have a legal representative process, except they have a fourth lock in place in that their legal representatives get involved and then go on to the sheriffs for judicial approval. It is then returned to us. Once we have that approval, we then obtain the information accordingly.
Victoria Atkins
Q Of course, the Bill also introduces the further safeguard of the criminal offence of making an unauthorised disclosure. In other words, there is also safety from the perspective of the telecommunications organisation, BT or whoever it is, knowing that if they do not make sure that you have complied with all of your duties, they themselves may be criminally responsible for giving you any information that they should not be giving you.
Mark Astley: Yes, and I think there is an intention to make the SPOC—the single point of contact—responsible for any recklessness or wilfulness in that misuse. That is another safeguard in place to ensure that there is no abuse or misuse of telecommunications data.
The Chair
With the permission of the Committee, I might suspend the sitting for 10 minutes at 10 minutes to 4 to allow people to have a quick break, because this is quite a long sitting. Is that with the permission of the Committee? Brilliant.
The Chair
We really are pressed for time, gentleman. Can we have shorter answers so I can get as many colleagues in as possible?
Charles Clarke: My short answer is yes, I would have been in favour of introducing such a Bill. I think the question of updating with future-proofing is very important. On the timing, I cannot comment on whether the Home Secretary was right to introduce it now as opposed to in five years, or five years before, or whatever. The only factor that I would add to John’s remarks is that the capacity of the organisations that we are trying to contest is a very important issue and they are very wealthy, very effective, very scientific and very powerful, as John said. An assessment will be being made, which I am not privy to now, of how effective those organisations are now, which undoubtedly would have informed the Home Secretary.
Victoria Atkins
Q I have one question for Mr Clarke. You were the Home Secretary during the 7/7 bombings. How important was your experience of warrantry and your relationship with the security services in the hours and days that followed that terrible event?
Charles Clarke: Critically important. I believe that one of our strengths in the UK is that we have good relations between the different security services, the police and the political establishment in these areas. Indeed, with 7/7 itself, there had been substantial rehearsals of the various co-operations that needed to take place. I think that co-operation between the various agencies charged with the security of the country is exceptionally important, and 7/7 reinforced that for me very much.
Victoria Atkins
Q When you were standing up in the House of Commons at the Dispatch Box explaining what the security services and the police were doing, how important was your personal oversight of that, as opposed to just a judge doing it by themselves?
Charles Clarke: The implication of your point I could not agree with more. My personal experience was very important. It did lead me, personally, directly to have relations with the individuals in the security services who were involved with these things, and I think that helped my whole job as Home Secretary.
Matt Warman
Q You talked about updating the legislation and the importance of that. Do you see an internet connection record or something equivalent to it as a key part of updating this legislation for the world we live in now?
Charles Clarke: I do personally, yes.
Lord Reid: I do as well. Not to test the Committee, but two years after 7/7, on 6 August 2006, there was a plot to bring down seven airliners. There would have been 2,500 victims, and intercept was absolutely essential in protecting those lives—absolutely essential—with both the internet and telephone communications.
Brussels Terrorist Attacks
Victoria Atkins Excerpts(8 years, 8 months ago)
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Mrs May
The right hon. Gentleman is right to say that Daesh is indiscriminate in whom it chooses to attack. Its terrorist attacks have taken place not only in Europe and Turkey and the countries I referred to, but nearer to its base in Syria and Iraq, where many Muslims have died as a result. It is indiscriminate in the people it attacks, and it is attacking our fundamental values which, as he says, include those of democracy, freedom of religion, and law and order, and which underpin our society. That is why it is so important for our society to say once again that we will not let the terrorists defeat us, and I welcome all the comments made around the Chamber that go out from this House today.
Victoria Atkins (Louth and Horncastle) (Con)
On a recent visit to Europol, the Home Affairs Committee viewed one of the horrific videos on the internet created by Daesh, and the propaganda that it uses to recruit people to its hideous cause. Does my right hon. Friend agree that the security services and police need modern, digital powers, including bulk powers, to destroy those criminals and keep us safe?
Mrs May
My hon. Friend is absolutely right, and those powers are necessary for our police and security services. That is why we will be putting the Investigatory Powers Bill through the House, because it includes powers to ensure that those whose job it is to keep us safe have what they need to do that job.
Investigatory Powers Bill
Victoria Atkins Excerpts(8 years, 8 months ago)
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Victoria Atkins (Louth and Horncastle) (Con)
Like the right hon. Member for Delyn (Mr Hanson) and others in the Chamber, I had the privilege of serving on the Joint Committee. Against that background, I have no doubt that the Bill will help the security services and the police to keep our nation safe while preserving our civil liberties. That alone is reason enough for the Bill.
But the Bill serves another purpose—one that is just as important to our constituents as national security—and that is to help the police and law enforcement officers to catch the most dangerous and serious criminals. These powers will be used to stop the very worst of humanity—those who commit unspeakable acts against children, those who run their criminal networks in our streets with violence and fear, guns and knives, and those who seek to undermine our civil society by stealing from the state and from our families. This is the reality of the crimes our police officers have to investigate. The Bill will help to prevent crime, and to protect the victims of crime from people who mean us harm.
If I may, I will try to bring these powers to life in the Chamber. In my previous career I used to prosecute criminals, and I am very familiar with the law enforcement powers in the Bill because all of them, with the exception of ICRs, already exist and have been used for many years.
One example was a case involving an organised crime gang who, with the mafia, used to run the counterfeit cigarette market in the north of England. Over six months, that conspiracy involved the import of millions of dodgy cigarettes and the evasion of over £10 million in duty. The case relied on digital evidence to prove the involvement of 11 defendants. We used mobile phone records and cell site data to build a map of the six months, showing, for example, when defendants drove from the port to HQ to distribute the cigarettes to couriers and further afield. The map was so detailed that we could point to a single call and suggest to the jury that that was the call to the gang to say, “The load is here. Come and get it.” That is an example of communications data. It is used in 95% of organised crime cases and 100% of counter-terrorism cases.
There was another piece of compelling evidence that caused real difficulties for the leader of the gang, and that was a microphone in his car. When the tape was played to the jury, the conversations revealed plans, not to import cigarettes but to import drugs. Criminals diversify, just as legitimate businesses do. That is equipment interference. It is vital in the modern age and has been for some time, but this case was five years ago. I used it deliberately, because we now use our phones in a very different way and so do criminals. If that case were investigated now, a major part of the prosecution case—the communications between defendants—might well be a black hole because of the changes in the way that criminals communicate. How many paedophiles, gangsters, drug lords, gun runners and terrorists are to escape justice while some critics of this Bill—not here, I accept—try to divert our attention with misleading claims of a snoopers charter?
Finally, I end as I began, with the Joint Committee. This was a Committee of all parties and none—Conservative, Labour, Liberal Democrat, the SNP and Cross Benchers. It was unanimous in its support in principle for the Bill. I therefore have no hesitation in advising the Chamber that the Bill is necessary, proportionate and just.
Will Quince (Colchester) (Con)
The primary duty of any Government is the security of its people. Above all, we need to ensure that those tasked with keeping us safe have the powers to do so. I congratulate the Secretary of State for listening to concerns about the draft Bill and taking steps to improve it before bringing it to Parliament. It is a better Bill than before. However, I am afraid I still have some concerns that prevent me from wholeheartedly supporting it.
First, everyone in this House wants the police and security services to have the necessary powers to intercept communications data, but the Bill goes further than that. It extends those powers to public and local authorities. Clause 64 states that a designated senior officer may grant an authorisation for obtaining telephone data to detect or prevent crime and disorder. A designated senior officer is defined as anyone at a local council with the
“position of director, head of service or service manager”.
I would suggest that there are no circumstances under which the head of waste services at my local council should be able to authorise an application for telephone data to prevent crime or disorder.
The Bill should not give councils these powers in the first place. We have seen what happens when we extend these sorts of powers to local councils: they abuse them. We all remember examples of local authorities using terrorism legislation to rummage through residents’ bins or to spy on local paperboys. If local councils need to investigate crimes and require telephone data, my response is simple: go and speak to the police. These are very serious powers, which is why I urge Ministers to restrict them to the police and the security services.
Victoria Atkins
Local authorities will not have the powers to deal with internet connection records. Indeed, the powers of local authorities are very much restricted, following the very legitimate concerns voiced several years ago about exactly the things my hon. Friend describes.
Will Quince
I take my hon. Friend’s point about internet data, but local authorities will have the powers in relation to telecommunication data. That is still very much in the Bill.
My second concern is around the modification of warrants. Clause 30 allows the Secretary of State to add, remove or change the names of people, organisations or premises to a warrant already issued. We are told this is for situations where the same target uses different names—in other words, the use of aliases. For example, the same individual may be known as Mr Smith with O2 and Mr Clark with Vodafone. That must be made clear in the Bill. These modifications should apply only to adding, removing or altering aliases of existing targets on warrants; the Bill should not permit changing names to investigate a completely different person.
My third and final problem concerns situations where a judicial commissioner refuses an urgent modification. The Bill says that where a commissioner refuses an urgent warrant, they can require that the information collected through that warrant be destroyed or restrict how it is used, but it does not make clear the commissioner’s powers when they refuse an urgent modification of a warrant. When the commissioner refuses urgent modifications to a warrant, I would like the Bill to allow them to require that any material obtained under the modified provisions of the warrant be destroyed or that restrictions be put on its use. In some instances, judicial commissioners are not required to review or approve modifications made to warrants at all. The Government should agree that all modifications require the approval of a judicial commissioner.
Despite those concerns, I will vote with the Government today. In order that we be kept safe, we need a Bill that confirms the powers of our police and security services, but we have only one chance to get the Bill right, so I hope that amendments can be made on Report.
Donald Trump
Victoria Atkins Excerpts(8 years, 10 months ago)
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Victoria Atkins (Louth and Horncastle) (Con)
It is a pleasure to serve under your chairmanship, Sir Roger. I must make a declaration: I am the only Member of Parliament who can claim to represent the good people of New York—New York in Lincolnshire. When those seeking religious sanctuary in the 1600s reached the shores of what we now know as the United States of America, that tiny hamlet in my constituency lent its name to a patch of land that grew to be one of the greatest cities on the planet. The good people of the original New York—all 150 or so of them—wear that honour lightly.
Sir Edward Leigh
Ted Cruz has launched a vicious attack on the people of New York, saying they are cosmopolitan—[Laughter]—so I hope my hon. Friend will stand up for the people of New York. Will she note, as I have, having looked at the map, that not a single person from Lincolnshire has signed the petition to ban Donald Trump?
Victoria Atkins
My hon. Friend reaches my point before me. I promise to deal with New York values at the end of my speech.
I turn, as I must, to Mr Trump. His comments about Muslims are wrong. His policy to close borders, if he is elected as President, is bonkers. If he met one or two of my constituents in one of the many excellent pubs in my constituency, they may well tell him that he is a wazzock for dealing with the issue in that way. I sense that my constituents, whether in New York or Tetney, in Minting or Mablethorpe, feel that their values are more than robust enough to survive anything that Mr Trump may say. We in Lincolnshire—in fact, we in the United Kingdom—should have enough confidence in our values to allow him to say whatever he wants in New York, New York, or in New York, Lincolnshire, or anywhere else in the world, because our British values are stronger than some among us here today appear to fear.
Anne McLaughlin
Does the hon. Lady understand that it is all very well for us to say, “We feel strong and we can withstand this, so you can criticise and offend and we will stand up to you,” but she and I are not Muslims living in a country where Islamophobia is already rising? Comments such as his, from someone who has such influence over so many people and is getting so much media exposure, can only harm not people like us, but those on the streets who feel vulnerable. They do not feel as strong as she and her constituents claim to feel.
Victoria Atkins
I can only give the hon. Lady reassurance. As someone who used to prosecute criminals for a living before I came to this place, any defendant who tried that on in court would get very short shrift from me and, I am sure, from the jury. We must not allow people who behave in such a disgraceful way—criminals who beat up other people on the basis of their religion or beliefs—to remove themselves from that by blaming someone on a different continent. If they beat up a Muslim on the streets of Britain, that is their responsibility and no one else’s.
One of the values that best sums up our country is the freedom to exchange thoughts and ideas within the law—the freedom to persuade or rebut; the freedom to inspire or eviscerate in argument; the freedom to speak; and the freedom to listen. That freedom is not always comfortable. Indeed, my hon. Friends the Members for South Dorset (Richard Drax) and for Tonbridge and Malling (Tom Tugendhat) referred to the rising problem in some of our universities about allowing free speech and providing safe spaces for it, for fear that people may be offended, but the freedom of speech must mean that we will sometimes be offended. It means allowing those whose views we hold to be unedifying to speak their minds. Crucially, it also means the freedom to reply—to say, “No, Donald Trump, you are wrong, and you are wrong for the following reasons.” That freedom was hard won over centuries and it must be defended jealously, because it goes to the essence of democracy and the rule of law.
Opposition Members may rely on the argument of consistency—indeed, one Member said, “So-and-so has been excluded, so Mr Trump must be excluded.” Let us remind ourselves of the threshold that must be met for that to happen. The Home Secretary must conclude that the person’s presence in the United Kingdom is not conducive to the public good.
The House of Commons Library helpfully provided a briefing paper for the debate, which gives 14 examples of people who had been excluded by Labour Home Secretaries by May 2009. Of those, 10 were considered to be engaging in “unacceptable behaviour” by seeking to foment, justify or glorify terrorist violence. Nine were considered to be engaging in unacceptable behaviour in order to provoke others to commit terrorist acts or serious crimes. Five were considered to be fostering hatred that might lead to inter-community violence in the UK and one had spent 30 years in prison for killing four soldiers and a four-year-old girl.
I ask a simple question of those who would ban Donald Trump: are they really saying that his conduct, no matter how offensive it may be, meets those criteria? If Donald Trump poses any question for us as a country, the answer is not to fuel his publicity by talking about banning him—incidentally, this debate is doing that nicely—but to rebut his arguments. The answer is to challenge him in a robust, democratic argument on why he is wrong about the contribution of American and British Muslims to this country.
Tulip Siddiq
The hon. Lady cites 14 cases of people who have been banned. Has she considered the 84 hate preachers who are banned? If so, she will see that there is a striking resemblance between what was said by Donald Trump and by two bloggers who were banned two years ago by the Conservative Home Secretary. Will she comment on whether the same should apply to Donald Trump?
Victoria Atkins
Forgive me, but I have already answered that. The House of Commons Library paper, as I think most people would accept, is a neutral document and those were its examples. I used every single one of the 14 examples given, and they are in a very different category from what Donald Trump has said on this issue and many others.
Finally, I will deal with the point raised by my neighbour, my hon. Friend the Member for Gainsborough (Sir Edward Leigh). In a recent Republican debate, Ted Cruz accused Donald Trump of having New York values. Both of them would be enriched by the values of my constituents in New York and beyond, who are hard-working, generous and welcoming. They may be rather bemused that we are fuelling that man’s publicity machine by having the debate at all.