Oral Answers to Questions
Joanna Cherry Excerpts(9 years, 10 months ago)
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Richard Harrington
I was at the Geneva conference on behalf of the Government, and I wish to place on the record that the British Government were congratulated by many other Governments on the work that they have done in relocating Syrian refugees. Our programme for resettling them has been significantly greater than those of all the other countries in the European Union put together.
Joanna Cherry (Edinburgh South West) (SNP)
At Easter, along with three other SNP Members, I spent several days visiting the camps at Calais and Dunkirk. During our visit, we met many refugees with strong ties to the United Kingdom. Why is the Government’s record on “take charge” requests under the Dublin convention for those with strong ties to the UK so poor, and what exactly will the Government do to ensure that there is greater awareness of, and a faster process for, such requests?
Richard Harrington
The hon. and learned Lady has rightly mentioned the Dublin convention and its effect. It is our Government’s policy to ensure that the convention works properly. With that in mind, we have seconded officials not just to France, including Calais, but to other parts of Europe—Athens, Rome and Germany—to ensure that what she has asked for happens and that the process is speeded up significantly.
Joanna Cherry
I am afraid that the Minister’s answer is not good enough. There was no evidence of any Home Office presence in any of those camps, and what is happening to children in the camps is utterly disgraceful. In the Grande-Synthe camp—
Mr Speaker
Order. The hon. Member for Isle of Wight (Mr Turner) is chuntering, from a sedentary position, “It is up to the French.” The hon. Gentleman is welcome to his opinion, but his opinion is not enhanced by his suddenly winking at me as though in self-justification. The hon. and learned Lady is a distinguished advocate, and she must be heard. Even if she were not a distinguished advocate, she would still be heard.
Joanna Cherry
This is not a laughing matter, and it is not “up to the French” when those children have connections with the United Kingdom. That is my point.
In the Grande-Synthe camp, I met a 16-year-old girl who was working hard for exams in a pop-up school in a tent. She had made the journey to northern France on her own. Her father is in the United Kingdom, but owing to the absence of guidance from the French authorities and the failure of our Government to act, she was stuck in limbo and uncertain about her future. Children like her are very vulnerable in the camps. It is time for the Home Secretary to show leadership. Will she give us a commitment that her Department will ensure that those with a legal right to join their families in the United Kingdom are granted that right as a matter of urgency?
Richard Harrington
I shall try to avoid repeating what the chunterers were saying earlier, because the hon. and learned Lady has made a serious point. However, I must reiterate that those children are in France and are predominantly the responsibility of the French Government, with whom we are working very closely by placing officials with them.
The children in question have a clear path. They should claim asylum under the Dublin convention, which they are perfectly allowed to do. It is then the responsibility of the Home Office—the British Government —to ensure that their asylum claims are processed speedily and effectively. If they do have the relationships with families in the United Kingdom that the hon. and learned Lady has been told that they have, I can assure her that the process is very much speedier and more efficient than it used to be.
Investigatory Powers Bill (First sitting)
Joanna Cherry Excerpts(9 years, 10 months ago)
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Joanna Cherry (Edinburgh South West) (SNP)
I was previously standing junior counsel to the Scottish Government, which has some tangential interest to the serious crime provisions.
The Chair
Okay; that is all the interests out of the way. We will now hear oral evidence from David Anderson QC, independent reviewer of terrorism legislation. Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill, as always, and that we must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 12 noon. Could the witness please introduce himself for the record?
David Anderson: I am the independent reviewer of terrorism legislation and the author of the report “A Question of Trust”.
The Chair
Yes, but as briefly as you could, please. If not, you can provide a written answer.
David Anderson: Internet connection records are a form of communications data. I said rather conservatively in my report that there were some forms of communications data that should be independently authorised, including novel and contentious ones. One of the respects in which the Bill did not really follow my report—I should add that in most respects it did—was in not providing for that outside the protected categories of journalists, lawyers and so on. I could well understand it if members of the Committee or others were to take the view that ICRs were of such a nature that to allow self-authorisation by the police might not be a sufficient safeguard.
Joanna Cherry
Q It is a privilege to serve under your chairpersonship, Ms Dorries.
Good morning, Mr Anderson. The first question that I want to ask you follows up on questions about the operational case for bulk powers. We heard on Second Reading of this Bill in the Chamber that in the United States of America, the bulk collection of citizens’ data has been heavily curbed, as it was considered to be
“not essential to preventing terrorist attacks”.
Most damningly, the American President’s privacy and civil liberties oversight board said that it was
“aware of no instance in which the”
National Security Agency’s bulk records programme had
“directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
Bearing that in mind, do you agree that a proper independent assessment of the utility and effectiveness of bulk powers would need to look at the experience of their use in other jurisdictions?
David Anderson: What you are referring to is one type of bulk power that I myself looked at the necessity for in a great deal of detail. It is difficult, of course, to read across from section 215 in the US to what we have here, which is rather different. What we have here is service providers being required to keep phone logs, details of when emails were sent and so on.
If you look at my report, “A Question of Trust”, you will see that there are several annexes there and quite a bit of text in which I set out just how useful the police find that power to be. I also found when I was in Germany, where at the time they did not have the power because Germany’s constitutional court had removed it, that the police and the internal security service were crying out for something along those lines. So, that is one aspect.
I cannot speak for the US position—different power, different circumstances—but particularly in dealing with paedophile crime, I was satisfied that this, if you like, plain vanilla element of bulk collection communications data was something for which there was an operational need.
Joanna Cherry
Q So, in your investigations for your report, you looked at the experience of at least some other jurisdictions. Is that correct?
David Anderson: I did, yes.
Joanna Cherry
Q So would you agree that a proper independent operational case for the support of this Bill should look at the experience of other jurisdictions?
David Anderson: Well, we have had three detailed reports. We have had the pre-scrutiny reports, as well. Evidence was heard by some of those Committees from people from other jurisdictions. It is always nice to think one is fully informed about what goes on in the rest of the world. Incidentally, that is very difficult in this field, because very few countries have been as up front as this Bill is about exactly what powers are used and how they are used.
For example, you mentioned the US and section 215, but of course there are other bulk powers that have not been curbed in the way you suggest. There is section 702, which was given a clean bill of health by the privacy and civil liberties oversight board. There is also executive order 12333, about which very little is known, but which seems to give very intrusive and extensive powers outside the US. So I am hesitant about drawing these country comparisons, although I accept that evidence from other countries is always useful.
Joanna Cherry
Q Bearing in mind the pressures of time, may I move on to my next heading, which is the scope of bulk powers? On Second Reading, the Home Secretary said that
“certain bulk powers are predominantly those for foreign usage, rather than in relation to the United Kingdom.”—[Official Report, 15 March 2016; Vol. 607, c. 823.]
Would I be correct in understanding that most of the bulk powers proposed in the Bill could, in fact, apply to the data of UK citizens?
David Anderson: The way it works, as I understand it, is that the use of the bulk powers must be motivated by a desire to retrieve data relating to people outside the UK. Of course, there will be what fishermen call a “bycatch” of people in the UK whose data are unavoidably retrieved during that process. The safeguard for people inside the UK is that if anyone wants to look at the content of that stuff, they need an individual warrant relating to that person.
Joanna Cherry
Q But would we be correct in understanding that, for example, bulk personal datasets will comprise the personal data of United Kingdom citizens?
David Anderson: That is certainly true.
Joanna Cherry
Q Would we also be correct in understanding that bulk communications data will comprise data relating to British citizens?
David Anderson: Indeed, that is true and has been the position for, we now know, some 10 or 15 years.
Joanna Cherry
Q So if an impression were to get about that bulk powers are merely about obtaining information on people who live overseas, that would be incorrect.
David Anderson: That would be incorrect, but of course neither of the two examples you gave me was about the content of people’s communications. The first was about lists and registers, and the second was about communications data.
Joanna Cherry
Q My third heading is legalities. You will be aware that the United Nations special rapporteur on the right to privacy has expressed concern that some aspects of the Bill may not comply with either European Union law or the UK’s obligations under the European convention on human rights. He expressed particular disquiet about bulk surveillance and bulk hacking, and suggested that those powers prima facie failed the benchmark set by the European Court of Justice in the Schrems case and by the European Court of Human Rights in the Zakharov case. Have you had a chance to consider his report?
David Anderson: I have.
Joanna Cherry
Q Do you have any view on what he has said in that regard?
David Anderson: I think he is advancing one view of what European law or international law might require. I do not think that it is the only possible view, and I would apply the same comment to the letter signed by 250 very distinguished lawyers and sent to The Guardian.
May I give you an example of the latest case in Europe to deal with these issues? In Szabó and Vissy v. Hungary, which was decided in January, the European Court of Human Rights described
“the massive monitoring of communications susceptible to containing indications of impending incidents”
as “progress” and suggested only that these powers needed proper legal safeguards, with which I think any sensible person would agree.
I think that there are two views at the moment, even within the European Courts. Where I disagree with the rapporteur and the 250 lawyers is on the suggestion that the position is now clear. It may of course become clearer, perhaps as soon as this summer when the Davis and Watson case is determined in Luxembourg, but I do not think that the case law has yet solidified.
Joanna Cherry
Q So your view would be that there are potentially two competing arguments as to where the case law is heading, but we do not know ultimately what the situation is, although we may have a better indication when there is a judgment in the Davis and Watson case later this year.
David Anderson: There are also the Strasbourg cases of Big Brother Watch and Liberty. I do not know when those judgments will come, but there are two views, basically. One is that bulk access to content, even only by machines, is just wrong and that, however strong the operational case for it and however minimal the actual intrusion into people’s private lives, it cannot be justified. The other, more pragmatic view is that it is a question of proportionality and that one ought to look at the strength of the operational case, just as one ought to look at the degree of intrusion into privacy.
Joanna Cherry
Q I want to ask you briefly about bulk personal datasets. It is possible, is it not, that medical information pertaining to every single citizen of the United Kingdom could be scooped up in a bulk personal dataset?
David Anderson: I do not believe that there is any statutory exclusion. Whether there is a justification for doing such a thing would depend, first, on whether the Secretary of State signed off on it and, secondly, on whether the judge was prepared to approve it.
Joanna Cherry
Q It would also be possible for bulk personal data sets in relation to children to be scooped up under this legislation as currently drafted. Is that right?
David Anderson: Again, I do not believe that there is any statutory exclusion.
Joanna Cherry
Q Do you agree that in the investigation of threats to national security and terrorism there can really be no justification for scooping up personal data in relation to children?
David Anderson: I am going to duck that one because bulk personal datasets were outside my remit. The use of bulk personal datasets, we now know, has been subject to annual review by the Intelligence Services Commissioner for several years. Perhaps he is the appropriate person to ask about that.
The Minister for Security (Mr John Hayes)
Q Thank you for coming, David. On bulk personal datasets, I note that you say that the members of the intelligence community that you have met, and what you have seen and heard from them, have confirmed the view that was expressed by the ISC and others. Are you clear about their efficacy and utility?
David Anderson: I think what I said was that bulk personal datasets had been looked at by the Intelligence and Security Committee and by the Intelligence Services Commissioner. I have read what they have said about that, including in closed hearings, and I said that what I was shown by the agencies was consistent with that, but I was not trying to do the same exercise that they had done of deciding whether these things were necessary or proportionate.
Joanna Cherry
Q To be clear, Mr King, is your evidence in relation to bulk interception and collection of data that there is intrusion and analysis of them by computer programs prior to any warrant being applied for?
Eric King: No. There will be warrants at the collection stage but at the moment it is simply 10. Those 10 warrants that are authorised every six months permit the agencies to intercept at an extraordinarily large scale: 50 billion connections every single day, and growing. We know that, in the past five years, that has increased by 7,000%. I say that those 10 warrants do not appropriately assess the proportionality requirements, and I do not think they are necessary in the current climate.
Joanna Cherry
Q Once the intercept has been collected, there is a stage of the process at which it is analysed by a computer, and that stage is not currently the subject of any legal regulation.
Eric King: That is right. It is internal authorisation by the agencies. We have no visibility on that. There has been no published material about that. In various court cases, disclosure has been sought better to understand those points, but we have not got it. The best I can gather, the internal authorisations inside GCHQ are at a very low level, mostly analyst by analyst even rather than going up to senior directors inside the agency.
Joanna Cherry
Q Just so we can be clear, does anything in the Bill involve legal regulation of that stage of the process?
Eric King: No, not at all. Our model is the same as it was 15 years ago. It is a very simplistic model that applies interception at one stage and then, when a human looks at it, an additional safeguard. However, that does not match the reality and, as a result, our warrantry, in my view, does not allow you to assess proportionality and necessity to an adequate level.
Joanna Cherry
Q We know now, because it has been avowed, that previous Administrations had unacknowledged arrangements for bulk interception of the internet in the United Kingdom. Can you tell us whether those resulted in the collection and analysis of ordinary British citizens’ communications?
Eric King: In the Bill and previous practice, there was a lot of focus on the fact that this would be foreign-focused—that the goal is to collect material outside the United Kingdom. The practical reality is that you cannot do that any more. All our communications slush around through the exact same undersea fibre optic cables as foreigners’. In terms of GCHQ’s collection programme, we do not know the exact percentage. I would encourage the Committee to try and seek out how many British communications are collected into this, but there is no way for them to distinguish between them at this point. When there is a foreign-focused power, at least for interception, the reality is that it is a massive amount of British communications. Your communications are not exempt from that and neither are mine, no matter quite what we might try.
Joanna Cherry
I would like to ask Ms Ogilvie a couple of questions if I may, Madam Chairman.
The Chair
Order. Time is very short now, because we have seven more people waiting to speak.
Joanna Cherry
Q I will ask one question briefly then. Liberty looked at the investigation by the Intelligence and Security Committee into the brutal murder of Fusilier Lee Rigby in May 2013. Did those inquiries suggest that if the security services had had more resources to cover lower priority level targets, the outcome could or would have been different?
Sara Ogilvie: The Intelligence and Security Committee report found that there were a number of failings that may or may not have led to the murder, but basically, the two suspects had both been known to the security services at various points. It had been decided not to treat them as priorities. When that decision was later changed and a warrant was sought to place one of the individuals under surveillance, delays meant that that warrant was not granted in enough time for that individual to be under surveillance at the appropriate moment. Those are absolutely not the powers in this Bill, or the use of powers in this Bill, that we have any exception with at all. That seems to us to be absolutely the right way to use powers. It was not a lack of information or a lack of target in this case; it was the fact that there was perhaps too much information to be used.
Simon Hoare (North Dorset) (Con)
Q Mr King, I am not a lawyer, so forgive me. Are you a parent?
Eric King: Pardon?
The Chair
If there are no further questions for Members, I thank the witnesses for their evidence, and we will move on to the next panel.
Joanna Cherry
On a point of order, Ms Dorries. In any forum that I have appeared in where the witness is being asked a question about a document, particularly a lengthy document, it is customary to afford them the courtesy of having a copy of the document in front of them. Might I suggest that if we are going to ask further witnesses about documents, we afford them that dignity?
Simon Hoare
Further to that point of order, Ms Dorries. To put the contra view to that expressed by the hon. and learned Lady, should not the Committee expect witnesses who are giving evidence to be properly briefed and to have in front of them documents on which they are likely to be cross-examined?
The Chair
I shall answer the substantive point of order. The information that the witnesses bring with them is their responsibility. It is not the normal procedure for them to have documentation in front of them or for the panel to know what information they have with them. As we decided at the start, they can always follow up in writing if they feel they did not have the right information.
Joanna Cherry
I am very grateful to you, Ms Dorries, for clarifying that questions and answers can be followed up in writing.
Examination of witnesses
Nigel Inkster and Lord Evans gave evidence.
Keir Starmer
Q I have one final question for either or both of you. Am I right in thinking that, as far as internet connection records are concerned, although the security and intelligence services would not say, “There are no circumstances in which we’d really need them,” in reality, they are relied on much less by the security and intelligence agencies than by law enforcement, as a separate component?
Lord Evans: It is not impossible that they could be of value in an intelligence sense, but I think the principal driver for using them or for obtaining them is for evidential purposes, and that is made clear publicly. It is principally a law enforcement and evidential issue to inform cases coming before the courts more often than it is an intelligence issue. You could construct a scenario in which it might be of value, but the purpose of putting them in the Bill, as I understand it, is law enforcement and providing criminal evidence.
Joanna Cherry
Q Lord Evans, I want to ask you about the savage murder of Fusilier Lee Rigby and the Intelligence and Security Committee investigation into that. It reported to Parliament that his killers had previously come to the attention of the Security Service on multiple occasions and that, in its view, intelligence reports were mishandled. I think I am right in saying that its inquiry suggested that, if the Security Service had more resources to cover more and lower-priority level targets, the outcome could or would have been different. Would you like to comment on that?
Lord Evans: The Lee Rigby murder took place after my time as director general—not that there is any connection between those two—so I am not very close to the actual facts. In general, one of the critical decisions—certainly for MI5, but it applies by logic to other people on counter-terrorism—is what you do not do. We have more leads which might connect to possible terrorist attack or to violent extremism than we can thoroughly investigate at any one time, so the service has created a quite rigorous triage process that ranks the seriousness of the available information, which is updated on a regular basis, and that drives therefore the allocation of resources.
The difficulty here is self-evident: obviously, sometimes you are working on the basis of fragmentary intelligence or unclear intelligence, so you have to make the judgment as to whether you put resources in to pursuing that or whether you put the resources in to something else. The fact is that sometimes you make a judgment on the available best evidence and then find out later that, actually, the situation was more serious than was apparent. That appears to have been the case with Lee Rigby.
Exactly the same issue came out after the 7 July bombings in London. Mohammad Sidique Khan had appeared in the context of Security Service investigations and police investigations a couple of years before. At that stage, he was assessed to be not a very serious threat and therefore he was put aside so that we could come back to him later while we did other things that were more immediately pressing, but in the interim his activities developed.
It is a problem. The question of course is: how do you get around that problem? The first thing is to use the best quality information available. The second is that the more resources you have, the more yesses you can give as to whether we investigate any one individual, but then you get into a judgment about how many people we think it is proportionate and necessary to investigate. If you doubled the resources of the Security Service again, there would still be cases where you might say, “We don’t have the resources to pursue that.” You ultimately get into a political judgment as to how much resource you want put into this and how much intrusion you have into the activities of people who might not be quite as threatening as others. That is a judgment that has to be made.
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.
Investigatory Powers Bill (Second sitting)
Joanna Cherry Excerpts(9 years, 10 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Solicitor General (Robert Buckland)
Q Thank you, Mr Walker; it is a pleasure to serve under your chairmanship. Mr McClure, you have made some powerful points, so thank you very much indeed for giving your perspective on the IT, and as a bereaved relative. We all share your grief and anger about the atrocity.
Mr Wardle, I want to ask you about internet connection records, the new potential powers within the Bill and the purposes for which those records could be retained by an internet service provider. We know now that, as a result of the Joint Committee’s recommendations, there are four purposes for which those records could be retained for potential examination by the authorities. I think that they are very clearly set out: for the purposes of identifying who sent a communication; to establish what services either a suspect or a potential victim has been using; to establish whether or not a known suspect has been indulging in online criminality; and finally—the additional one—to identify services that a suspect has accessed, which could assist an investigation. If there was a narrowing of those purposes, what effect do you think that would have upon the authorities’ ability to investigate child abuse and related offences?
Alan Wardle: As I understand it, the previous draft Bill had a narrowing in the fourth one, and I appeared before the Joint Committee before Christmas to argue against that narrowing. I cannot remember the exact wording, but it was essentially where illegal activity was happening.
Again, I go back to the example of the grooming case I mentioned earlier. Grooming, by its very definition, takes place over a period of time. There are certain activities that you would want to investigate that are perfectly legal. Say a child has been trafficked across the country. Someone has hired a car, taken it from A to B and dropped it off, and they have gone on to the Travelodge website to book a hotel room. All of those are perfectly legitimate activities, but those activities—as part of a wider investigation—would be able to show the police that that person trafficked that child from A to B and that those activities took place. Clearly more would be needed, but the narrowing that was there before would, we believe, have unduly restricted the police’s ability to investigate those kind of crimes.
Joanna Cherry (Edinburgh South West) (SNP)
Q May I ask you some questions about internet connection records? Can you confirm that you have read the operational case for internet connection records referring to the case of Amy?
Alan Wardle: I do not think I have read that.
Joanna Cherry
Q Would you agree with me that if a child goes missing, the first thing you want to do is to find out what social media or chat sites the child has been on?
Alan Wardle: Whether that is the first thing you want to do, it is certainly—
Joanna Cherry
It would be a priority.
Alan Wardle: That would be something that the police would want to investigate pretty quickly.
Joanna Cherry
Q Is not the easiest way to do that to ask their friends?
Alan Wardle: It could well be, depending on what has happened. In an ideal world, the child would keep all the evidence themselves and it would all be freely available in terms of the content, but things are deleted and friends are asked to keep quiet and so on, so it is not always necessarily available. If the child has been groomed, they may have been taken by someone they think is their boyfriend, away from their dreadful parents—they are running away.
Joanna Cherry
Q Sometimes the child will take their phone with them and it will be switched off and be no use to us, but other times they will leave their phone behind and we can get into the phone and see which social media sites they have been on. Is that right?
Alan Wardle: I am not a police officer, but yes, I presume so.
Joanna Cherry
Q Equally, if there is a computer at home, the police can access the computer with the parents’ permission and see what social media sites the child has been on?
Alan Wardle: Yes, but three quarters of 12 to 15-year-olds have a mobile phone or tablet, so it is rarely the computer on the dining room table any more.
Joanna Cherry
Q If we assume that the computer and the phone are not available, you could go to friends or siblings and find out what social media the child commonly uses. If, for example, the child commonly uses Facebook, the friend will be able to tell you what the child’s username is.
Alan Wardle: Well, the child’s username would be their real name because Facebook has a real name policy.
Joanna Cherry
Q Indeed, and they will know what their friends’ names are. I do not really know how Bebo works, because I am too old, but if it is not a known name on Bebo, you are still able to get the username from the child’s friends.
Alan Wardle: I would imagine so, yes.
Joanna Cherry
Q Does it not really boil down to this: wherever you get the information from—whether it is mum or dad or, more likely, mates at school—you have to go to Bebo or Facebook and ask for their help?
Alan Wardle: The social media companies clearly have a huge part to play in this as well. We challenge them regularly on all aspects of how they keep children safe online. What is important when the police are investigating such crimes is that they have every tool available to them that can legitimately be made available. Some will be traditional policing methods, such as asking their friends and knocking on doors, and some may be much more technical aspects, such as internet connection records.
Joanna Cherry
Q But would you agree with me that what is important is to have effective tools?
Alan Wardle: Absolutely. One of the things we have challenged the internet companies on is that if those tools are available, they should be widely available. A good example is what is called PhotoDNA, which basically means that illegal images of children are hashed and can be removed across the internet. That is a really positive development. That technology was developed by Microsoft, but shared across all the big companies, which is a really positive thing.
We know that there are other technologies—anti-grooming technologies, for instance—that have been created, but have not been shared in that way. I think that there is an obligation on the companies—your Apples, your Facebooks and your Microsofts—to ensure that these kind of tools, with no real commercial gain to be made from them, should be freely available across the industry.
Joanna Cherry
Q If we just go back to the example that I was pursuing, about the missing child, I think you agreed with me that it is important to have effective tools. Is it your understanding that all the internet connection record will tell you is what the missing child connected to? It will not tell you what the missing child did once they were connected.
Alan Wardle: No. That is the issue to do with content. Again, it could well be that that is part of a wider picture.
Joanna Cherry
Q An internet connection record will only tell you to which service the child was connected, not whom they spoke with, nor what the content of their speaking was—
Alan Wardle: Not necessarily.
Joanna Cherry
Q Whereas, if you go to the child’s friend and get the child’s username on the social media site, you will be able to get that information as to content.
Ray McClure: You would still need the child’s password to access the data.
Alan Wardle: That is not enough in and of itself. Yes, do you have the password? How would you get into it?
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.
Joanna Cherry
Q At the Joint Committee, Mr Hughes, you said that BT had never collected internet connection records before, that you would have to deploy new equipment to comply with the legislation and that that would come at a cost. That is correct, is it not?
Mark Hughes: That is correct, yes.
Joanna Cherry
Q I understand from your answers to Keir that you are still working with the Home Office to agree the precise specification of what an ICR is. Is that right?
Mark Hughes: That is right, yes.
Joanna Cherry
Q Are we to understand, then, that you have not as yet reached agreement with the Home Office about the specification of an ICR?
Mark Hughes: No. It is a work in progress. This is quite a truncated time frame, as you know. I characterise a lot of things that we are doing at the moment as “in parallel” as opposed to “in series”.
Where we are at the moment is that there has been extensive consultation with the Home Office around this. There are a number of different technical approaches to how you take those component parts that then constitute themselves as an internet connection record—for example, things like the rate of sampling that you use inside the networks. Of course, it depends on the type of service that we are talking about; there are technical differences between how those services and that information are then put together to create the internet connection record. That has a big difference in terms of the associated cost.
Joanna Cherry
Q That is what I want to come on to. The Home Office has mentioned a figure of £170 million. Can you give us any indication of how much of that money British Telecom would need to build a system?
Mark Hughes: There is a spectrum. If the Home Office wanted us to collect everything and carry out a very high rate of sampling, meaning that a lot of information would potentially be available, BT—and EE; we recently bought EE, as you may know—would take the lion’s share of that figure alone, just in terms of our services.
However, we are in very frequent dialogue. Only in the last couple of days, we have been talking to the Home Office about the technical challenges associated with the trade-off between how much it will cost and how much data will be available. Clearly, if there is a different view in terms of the amount of data required, the cost may well be appropriate for the rest of the industry. It is difficult for me to comment on other operators.
Joanna Cherry
Q We have covered potential costs of building the system. Can you give us a timescale?
Mark Hughes: Again, that is down to the detailed, technical implementation and testing to ensure that it would work properly. Some of the data sets that make up the ingredients of an internet connection record are something that we do retain for business purposes already—not necessarily for the length of time they are talking about—so depending again on the final technical solution we came at, and at what services it is targeted, it could take a few months and up to a year-plus to get a solution in place.
Joanna Cherry
Q When you say a year-plus, how much on top of a year?
Mark Hughes: Again, depending on exactly what it is that we agree on with the Home Office that it wants, I think it is reasonable to suggest that we would have a service in place in a year.
Joanna Cherry
Q Are you aware of what has happened in Denmark regarding the collection of internet connection records?
Mark Hughes: I am, yes.
Joanna Cherry
Q On 17 March, the Danish Minister of Justice informed the Danish Parliament that the plans for a new internet connection records scheme had been put on hold. The reason given for the policy change was the substantial cost of ICR collection—the economic burden would be too high for the Danish telecoms industry. Were you aware of that?
Mark Hughes: I am aware of that. Under the proposals in the Bill—the Home Secretary has made reference to it—we would recover our costs from the Home Office, as we have done under existing legislation. We would like to see clearly articulated on the face of the Bill that 100% of our costs are to be recovered. That is very different from the Denmark situation. In Denmark, that is not the case; the burden is placed on the telecoms operators.
It is difficult for me to comment precisely on the Danish telecom operators because I am not one of them, but specifically here, as far as the UK is concerned, the proposed regime is more sensible as long as it is clear that we will recover 100% of our costs. We think it is important that that is on the face of the Bill—not just for the reason we said about Denmark, but also because more broadly in itself it provides a proportionality check, so you would not spend a huge amount of money to achieve little effect. If it is clear how much the public purse will have to bear of that, we think that in itself creates a proportionality check in terms of what activity is proposed.
Joanna Cherry
Q Do you agree that we cannot compare what is proposed in the Bill with what was proposed in Denmark until you have got an agreed specification with the Home Office?
Mark Hughes: A pamphlet has been issued and we have been in discussion with the Home Office as recently as the last couple of days about this. More clarity is required, but broadly speaking there is a definition in the Bill, there are purposes in the Bill and we understand that there are options technically around it. We have been working that through with them, but yes we would like clarity as soon as we can.
The Minister for Security (Mr John Hayes)
Q Thank you, Mr Hughes, for coming, and thank you also for acknowledging the extent of the consultation with which you have been engaged with the Home Office. As a result of that, you will know that the codes of practice published at the time of the Bill reflect some of the arguments you have advanced previously and clarify some requirements.
Today you emphasised that as we move forward there will be ongoing discussion. How important do you therefore think it is to avoid rigidity by putting more on the face of the Bill rather than including that in codes of practice and in the ongoing discussions you described?
Mark Hughes: It is very important that we have words and definitions on the face of the Bill to deal with the really substantive points as far as this type of legislation is concerned—namely the level of intrusiveness, which is clearly where definitions help. A definition is only really a way of helping to establish the level of intrusiveness of the power that is being put in place.
There are needs to have something. One need, which I have said, is about ensuring that there is clarity around 100% cost recovery, for example. There is definitely a need for that and with 268 pages there is quite a lot in there. However, we also recognise that as technology changes—our world is an ever-changing one as we know, and that is the case specifically in our industry—there is need for flexibility of a discussion point around how consultation happens and how that manifests itself in a legal instrument for us to retain and disclose either content or other types of communication data.
It is a difficult balance to be had. I think there is a lot at the moment in the Bill that is very useful. There are purpose limitations, for example, which are very useful for us, as are, as I said already, the definitions.
The other point is that there does need to be flexibility in future about understanding how the new codes of practice will be formulated based on what was required, and the Bill is clear that the correct oversight is in place. That is a difference from the extant legislation. The consultation process is different from others there have been in the past, and we welcome that.
The Chair
Thank you.
Joanna Cherry, if I give you six minutes—I gave Keir six minutes—you will know what you are working with.
Joanna Cherry
Q Thank you, Mr Walker.
Mr Farrimond, are you aware that just last week the Danish Minister of Justice informed the Danish Parliament that plans for a new internet connection record scheme have been shelved in Denmark?
Chris Farrimond: Yes, I am.
Joanna Cherry
Q Are you aware that the reason given for that was the substantial cost and the economic burden for the Danish telecom industry?
Chris Farrimond: Yes, I am aware of that too.
Joanna Cherry
Q I want to change tack slightly and ask you about the police online Crimestoppers website. I am sure everyone agrees that it is a useful service.
Chris Farrimond: Yes.
Joanna Cherry
Q I looked at it again this morning and it says that when you fill in their form and say you want to be anonymous, you are guaranteed anonymity. That is correct, isn’t it?
Chris Farrimond: Yes, it is.
Joanna Cherry
Q But if we pass this Bill, that assurance will no longer be accurate. Isn’t that right?
Richard Berry: That is a technical observation, but I think the point is that, in terms of the collection of data and, more importantly, police access to or acquisition of that data, we are looking for stuff that is relevant and useful. So a line of inquiry or a justification for accessing the Crimestoppers website from my perspective could not be justified in terms of the necessity and proportionality tests required for giving that authority.
Joanna Cherry
Q If we could reel back a little, if this Bill is passed, the purpose of internet connection records, we have been told, is to have a record of every device’s connection to every service. If anyone goes on to the Crimestoppers website and fills out the form, there will be a record of their connection to that service, so it is correct to say that their anonymity is no longer guaranteed. Is that not absolutely right?
Chris Farrimond: Where is that different from Crimestoppers? If someone phones in, they are guaranteed anonymity, but if we wanted to we could easily find out who made that call. We don’t because we guarantee anonymity. If we didn’t, no one would phone the number any more.
Joanna Cherry
Q I am focusing on internet connection records. There may be other questions about communications data, but I want to clarify, because it may be very important to Members’ consideration of the Bill, that I am correct in saying that, if this Bill is passed as presently drafted, the assurance of anonymity on websites such as Crimestoppers will no longer be accurate because the purpose of internet connection records is to identify that A has used a particular device to connect to the internet service concerned.
Richard Berry: That is no different from the present situation with internet communications data. The fact that there is a freephone call number for Crimestoppers doesn’t mean that in technical terms that communication cannot be traced, but we just don’t do that because we guarantee anonymity. It wouldn’t be necessary and it wouldn’t be proportionate.
Joanna Cherry
Q But when you use a phone to contact Crimestoppers, there is no tick box saying, “I want to be anonymous”, is there?
Richard Berry: There is an assumption. It is well advertised that Crimestoppers—
Joanna Cherry
Q There is no tick box on a phone.
Richard Berry: Not that I am aware of. No.
Joanna Cherry
Q But there is a tick box on the internet site saying, “I wish to remain anonymous.”
Richard Berry: That can remain.
Joanna Cherry
That is there because we have discovered in police and law enforcement services, where I used to work as a Crown prosecutor, that if you guarantee people anonymity, you sometimes get more people to come forward.
Richard Berry: Absolutely.
Joanna Cherry
So it is possible that, if this Bill is passed, we will actually dissuade people from reporting crime because we can no longer guarantee their anonymity.
Chris Farrimond: I am also responsible for covert human intelligence sources for informants. Of course, we know their identity, but we guarantee their anonymity. That is precisely what we do, although their identity is known within the agency. It is difficult to predict exactly how this could possibly impact, but if we are guaranteeing anonymity, that means we will not—
Joanna Cherry
Q But we are not talking about CHIS; we are talking about ordinary members of the public, the sort of person who watches “Crimewatch UK” when it is on once a month, recognises one of the mug shots and goes on the website but is scared for their own safety and so wishes to remain anonymous. We need to be clear that that anonymity can no longer be guaranteed because all internet connection records will be collected. Is not that right?
Richard Berry: It would be guaranteed by law enforcement, because that is our operational policy. We would not access it. We do not retain the data, and nor could we access it, as a matter of policy.
Joanna Cherry
But the fact is that the connection to a particular service from a particular computer will be recorded as an internet connection record and retained.
Richard Berry: In theory, that could be the case, but it would never be accessed. Lots of internet connection records would potentially be gathered, but we are very much about targeted inquiry, rather than bulk inquiry, so it would never pass the necessity and proportionality test.
Joanna Cherry
That is an internal guarantee that you are giving us. There is nothing in the Bill to say that it would not be accessed, is there?
Richard Berry: Not that I have seen, no.
Mr Hayes
Q I will be mercifully brief. Given your very wide case experience, and the fact that an overwhelming number of serious crimes are now connected with both the technology and methods of modern media, can you envisage circumstances in which loss of life or severe injury might be prevented through equipment interference?
Chris Farrimond: Absolutely, yes.
The Chair
Joanna Cherry, you have five seconds, and anyone who wants to answer has 10 seconds.
Joanna Cherry
Q I will try. Unilateral assertions of extraterritoriality will not help us much, will they? What we need is bilateral or multinational agreements with other countries, such as we have through Europol.
Chris Farrimond: I would say that they will help, in that they demonstrate what the UK would like to achieve. We have really good partnership relationships with a number of countries around the world. If it so happens that they are looking at a similar sort of provision in their legislation, we could quite easily find common ground. It may be that that is not possible and we need greater detail, but there is no harm at all in saying, “Look, this is what we’re asking for. It’s quite reasonable, isn’t it? These are our checks and balances around it.” That is the start point, as far as I can see, for further negotiation.
The Chair
Thank you. Well done colleagues—you were razor-like in your questioning.
Examination of Witnesses
Mark Astley gave evidence.
Keir Starmer
Q I see, so at the moment, your function is limited in this particular field to local authorities.
Mark Astley: Correct.
Joanna Cherry
Q Your organisation has identified a range of crimes that local authorities use communications data to tackle. Do you think the Bill ought to identify the crimes more precisely to prevent data from being used in relation to, for example, rubbish collection or school places?
Mark Astley: I believe that the process is in place for identifying necessity and proportionality. The three bar process that we currently have in place will deal with that. To actually identify particular legislation could become more constraining and difficult to administer and, as more legislation comes along, more changes may be required to the Bill.
Joanna Cherry
Q Do you agree that the issues of rubbish collection or potential abuse of school places are not really serious crimes?
Mark Astley: I do, and the fact that communications data is not used for those types of investigations in respect of that should enforce that.
Joanna Cherry
Q But there is nothing on the face of the Bill to prevent it from being used for that kind of investigation, is there?
Mark Astley: No, but we have the three locks in place. They call it the double lock at present, but what the National Anti-Fraud Network provides is what we call a triple lock. We have the NAFN single points of contact that it has to go through. They are fully accredited and professional, and they are fully trained to ensure that we weed out all those types of inquiries. The next lock is the designated person, and following that you have the judicial approval process, too. There is a triple lock in place to prevent any of that from happening.
Joanna Cherry
Q But there is nothing on the face of the Bill to prevent the individuals you have mentioned from ultimately reaching the view that it might be necessary or proportionate to access communications data to deal with issues around rubbish collection or school places. It has happened, has it not?
Mark Astley: Not for communications data. The process is in place—the triple lock—from a NAFN perspective. The NAFN SPOCs are totally independent and fully trained. They will ensure that any application is appropriate, necessary, proportionate and lawful for that to process.
Joanna Cherry
Q You mentioned judicial authorisation. Can you elaborate on what you meant by that?
Mark Astley: Currently, our members have to go to a local magistrate to have any access request approved judicially.
Joanna Cherry
Q It is possible to bypass the single point of contact in an emergency, is it not?
Mark Astley: No, not for a local authority.
Joanna Cherry
Q Your organisation told the Joint Committee that five hours of an officer’s time seeking judicial approval is “slow and inefficient” and “a deterrent to councils”. Do you feel that the individual’s right to privacy might justify five hours of an official’s time?
Mark Astley: The issue around resources is more about how we can better deliver the services. The judicial approval process is there, and it is supportive. Looking at the figures for the past two years, 2% of those requests have been rejected by our own SPOCs, 0.3% have been rejected by the designated persons and only 0.2% have been rejected by judicial approval. Our belief is that the processes in place work effectively.
Joanna Cherry
Q That was not really my question. My question was on whether you agree that the individual’s right to privacy justifies the time that is sometimes taken in inputting for a judicial approval.
Mark Astley: I understand the need for respect for privacy, but the necessity and proportionality aspect of every case will be considered, and if it is appropriate to do so, we would need to intrude on that privacy.
Mr Hayes
Q Obviously, your role is an additional safeguard. There are those who think that the Home Secretary and I are preoccupied with safeguards, checks and balances and the defence of privacy, but I think we have probably got this right. Can you tell me of the number—the frequency—of requests that you would consider to be an abuse of power in respect of applications for information? How often do you come across seedy requests that you would consider to be an abuse of the powers?
Mark Astley: In 2% of inquiries in the past two years, we have had applications rejected or cancelled through the input of our accredited SPOCs.
Keir Starmer
Q One final swift question on thematic warrants and the breadth of the powers proposed in the Bill. Do any of the witnesses have headline concerns that the Committee can take away to work on as we consider the Bill line by line?
Sir Stanley Burnton: First, the existing formulation in RIPA is very unsatisfactory and unclear, and it does not cover many cases in which it would be sensible to have a so-called thematic warrant. However, the wording of clause 15(2) is very wide. If you just have a warrant that gives a name to a group of persons, you have not identified—certainly not in the warrant—all those persons to whom it is going to apply. There could be substantial changes in the application of the warrant without any modification. At the moment, the code of conduct envisages a requirement that names will be given so far as practicable. Our view is that the warrant should name or otherwise identify all those persons to whom the warrant will apply, as known to the applicant at that date.
The other concern is that substantial modifications can be made to a warrant under the Bill with no judicial approval or even notification. That needs to be changed.
Lord Judge: I agree with Sir Stanley. I will not say anything more on the second point he made, but on the first, a part of the process that all of us involved in supervising surveillance attach a great deal of weight to is that we are looking at individuals. There has to be evidence that X requires this, that there is a situation in which it is necessary for this to happen, that it is proportionate in this particular individual’s case and that there is no collateral interference. For example—there are many different examples—why should a women who happens to be married to or living with a man who is suspected and so on have her life entirely opened up in this way? Not having specific identified individuals leaves a very delicate situation. I suspect that the commissioners would find it very difficult to just say, “Well, we’re satisfied. There’s this gang here and they’re all pretty dangerous.” They might not be, and we have to be very alert to that.
Joanna Cherry
Q I have questions for Jo Cavan. In your organisation’s written evidence, you have picked up on earlier concerns about the draft Bill and updated them in the light of the finalised Bill. In the first point, you say that you have concerns about the “aggressive timeline” for the Bill. Can you explain what you mean by that?
Jo Cavan: It is a really complicated and significant piece of legislation. Although I broadly support the Bill, because it is a good thing to put a number of the powers used by the intelligence agencies on a clearer statutory footing and to try to improve transparency, I do think that the scrutiny process has been very hurried. That is of concern because there are some significant privacy implications to the clauses in the Bill. There is still a long way to go towards strengthening some of the safeguards. Also, a lot of the operational detail is in the codes of practice. It is really important that those are scrutinised properly, line by line.
Joanna Cherry
Q When you express concerns about the aggressive timeline for the Bill, are you talking about the Bill before us as well as the draft Bill?
Jo Cavan: Yes.
Joanna Cherry
Q So you consider the time that has been afforded for the scrutiny of the Bill before us to be aggressive.
Jo Cavan: It has been challenging to say the least.
Joanna Cherry
Q Do you think it is adequate?
Jo Cavan: You could argue that because we are waiting for a number of key judgments from either the European Court of Human Rights or the European Court of Justice, it might seem a bit premature to be legislating in some of these areas, but then when do you draw the line?
Joanna Cherry
Q At point 5 in your written evidence, you pose the question:
“Is it desirable to have the same body responsible for authorising investigatory powers and undertaking the post facto oversight of the exercise of those powers?”
You say:
“If so, the judicial authorisation and oversight elements of that body must be operationally distinct.”
You have already explored point 2 of your written evidence with us, but will you elaborate on point 5?
Jo Cavan: It is clear to us that there needs to be some operational distinction between the approval—the judges who are going to be approving some of these techniques—and the audit and oversight after the event, because if the judges approving the requests are then responsible for the post facto oversight, essentially they could be accused of marking their own homework. Again, if the commission is created, you will be able to distinguish those key elements.
It is really important for the commissioners to work very closely with the inspectors and technical engineers and so on who will carry out the post facto audits. They are obviously going to need to support each other, but it is really important that there is a distinction. I think I have spoken to a number of our international oversight counterparts, and some of those are quite surprised that we are going down a route where we are putting both elements into one body.
Joanna Cherry
Q At point 6 of your written evidence you expressed concern that in the draft Bill there were
“a number of clauses which provide exceptions for national security or which exempt the intelligence agencies from key safeguards”.
What is your view of the finalised Bill in relation to that concern?
Jo Cavan: Essentially there has been progress on one of the national security exemptions, which is around the acquisition of communications data to determine journalistic sources. The Government have amended clause 68 to remove the national security intelligence agency exemption. That was because that was picked up by the Intelligence and Security Committee and the Joint Committee.
However, there are still two broad exceptions in the Bill: clauses 54 and 67. One of them is really important, because it is around the independence of designated persons. This area was strengthened as a result of the Digital Rights Ireland case, and that is an area where we still find significant compliance issues within public authorities. Communications data is approved by designated persons—it will become designated senior officers in the Bill—who are from the same public authority. In almost half of the police forces, intelligence agencies and other bodies that we inspected last year, we made recommendations around that area because we were not satisfied with the independence.
The clauses as drafted seem to drive a horse and cart through the independence requirements for designated persons by exempting very broadly national security. The same is the case in the single point of contact provision in clause 67: that appears to exempt in national security cases the SPOC being consulted, and we see the SPOC as a key safeguard in the process. So the fact that the Government have already said that the exemption relating to journalistic sources was broad, and removed it, suggests that the same needs to happen to clauses 54 and 67.
Sir Stanley Burnton: I would just like to add that it is far from obvious that the interests of national security, which is a ground for the grant of a warrant, is itself an exceptional circumstance. It is very difficult to see what the logic behind that formulation is.
Peter Kyle
Q One of the innovations of the Bill is the double lock. When you were Home Secretaries, most warrants would have been signed just by the Home Secretary. Will the knowledge of having judicial oversight and a second authorisation before the warrant comes in change the behaviour of the Home Secretary when approaching the decision?
Charles Clarke: I tend to doubt it. Speaking for myself and, I am sure, for John—actually, for all Home Secretaries I have ever discussed this with—we have all been exceptionally aware of the severity and seriousness of what we were looking at. I do not think that the idea that there was going to be a judicial review of what we were doing would have changed our behaviour significantly. There is quite a serious, in-principle issue about the role of the judge as opposed to the role of the Executive.
I saw you taking evidence from Lord Judge just now. I bumped into him as I was coming in. The question of the relationship between the judiciary and the Executive is a key point. I gave evidence on it to the House of Lords Constitution Committee in 2007 because I think it has all been changed by the Human Rights Act 1998. I think there has been insufficient consideration of the changing nature of the relations. In response to your particular point, Mr Kyle, I do not believe that there would have been a significant change in behaviour.
Lord Reid: I do not think there will be a change in behaviour from the point of view of the person who is ultimately accountable to Parliament for the decisions, which is the elected Member and appointed Minister. Probably even before RIPA, which I think Charles took through the House of Commons, there was an awareness that there were degrees of oversight and you were working within certain constraints and certainly with oversight.
I confess that where I would worry—you would perhaps say, “Well, he would, wouldn’t he? He was the Home Secretary.”—is in case the judicial oversight became a co-decision. I think that is a recipe, in some cases, for obstacles to the efficient operation of aspects that I mentioned earlier, for instance in a hostage situation. I know that allowances are being made for that.
I guess that the additional oversight—judicial oversight—that is in the Bill is a result of a number of factors. One is the concern—I do not know whether it is public concern; I do not think it is, but it is certainly published concern—over the Snowden revelations, the general distrust of politicians and the fact that there was a Liberal-Conservative coalition. All of this is compromise, is it not?
I have no in-principle objections to it, provided that the first decision is made by the person accountable for it, through Parliament, to the public and the role of judicial oversight is the judicial element of it.
Joanna Cherry
Q On 4 November last year, when the Home Secretary introduced the draft Investigatory Powers Bill to the House of Commons, she informed us:
“the acquisition of bulk communications data, both relating to the UK and overseas…is not a new power. It will replace the power under Section 94 of the Telecommunications Act 1984”.—[Official Report, 4 November 2015; Vol. 601, c. 971.]
May I start with you, Mr Clarke? When you were Home Secretary, how many times do you recall authorising the use of
“the power under Section 94 of the Telecommunications Act 1984”
to collect the telephone records of everybody in the UK into a single national database?
Charles Clarke: I do not recall the answer to your question at all, I am afraid; I have not prepared for this meeting, or gone back to my files, so I cannot answer the question. I think what the Home Secretary will have been trying to communicate is that the purpose of this legislation is to update legislation in the light of massive technological change, even since 1999, when I took the RIPA Bill through Parliament. As you will recall, that was to make what was being done compliant with the Human Rights Act, which required us to have a basis on which all of this was understood. Previously, this had all been done without any basis, and I was very proud to take that legislation through.
I said at the time—if you go back to the records of those hearings—that it would be necessary to update that Bill as technology moved forward, and I think that is what the Home Secretary meant in what she said. However, I apologise that I cannot give you the precise answer that you are looking for.
Joanna Cherry
Q Perhaps you can help me with this question. When Parliament passed the Telecommunications Act 1984, there was no such thing as itemised phone bills. Do you remember back that far?
Charles Clarke: I was hardly born then. [Laughter.]
Lord Reid: That is before even we were in Parliament.
Charles Clarke: Sorry. Joking aside, I understand your point completely—
Joanna Cherry
Q On the hypothesis that that is correct—that there was no such thing as itemised telephone bills in 1984—then the use of itemised telephone bills to compile a national phone call database could not have been foreseen when that legislation was passed by Parliament, could it?
Lord Reid: I think these are interesting questions, but they miss the point of historical change since 1984; that is the important thing. To put it at its simplest, the principles behind interception or access have always been the same, whether it was in the days when you sent a letter to somebody, or the days when you made a telephone call to somebody. The principles, put very crudely, were that if you wanted to know whose name was on the envelope, then you had a level of authority that was necessary, and oversight. If you wanted to read the letter, you had a higher level of authority that was required, normally from a Minister. Similarly, with telephone calls, if you wanted to know who was phoning whom, then you needed a level of authority that was not necessarily the Home Secretary, because after 1984 there was such information available. If, as a result of that, you wished to go into the contents of the telephone conversation, like the contents of the letter, you required an even higher level of authority by warrant.
What has changed is that it has gone from people sending pigeons, writing letters and telephoning each other, to global communication, as you will be well aware. Instead of a phone call from Cambridge to London that can be intercepted, it goes around the world in packages. Indeed, as you probably know, that is why it was produced: the internet has its origins in the necessity of protecting the command and control structure for the launch of American nuclear weapons by the American President. It makes it much more difficult to intercept that.
To put it in grossly simple terms again, somebody used to say, “We all like rabbit pie but first you have to catch the rabbit.” We all want to get the needle in the haystack, but first you have to find the haystack. The problem we are all faced with now is that the haystack is global. It is global communication, which is why we get this tension between so-called bulk collection and targeted examination.
That is a long answer to your question, but I hope it goes to some of the central questions that your Committee will be asking about that relationship. Normally, a Secretary of State would authorise a targeted interception, but the explanation of why you are being asked to authorise that may relate to something much wider, as I hinted at earlier, because you have discovered the need to target this interception because of a bigger node and a bigger network.
Joanna Cherry
Q I was not asking about targeted interception, I was asking about the current Home Secretary’s specific avowal of that fact that for many years section 94 of the Telecommunications Act 1984 has been used to collect the phone records of everyone in Britain into a single national database. I am simply interested to know whether either of you gentlemen, as former Home Secretaries, could tell us whether you had authorised that.
Charles Clarke: No, I cannot, for the reasons I have stated.
Lord Reid: You would have to ask the Secretary of State that.
Charles Clarke: I do think that the related point is future-proofing. In an area where technological change is taking place so rapidly—where you have a state of affairs on the balance between security on the one hand and liberty on the other, and where we need to keep the capacity to surveille threats to society—how do we future-proof that? That was the issue I faced with RIPA in 1999-2000, and I think it is the issue that this Committee faces in thinking about this particular piece of legislation too.
Brussels Terrorist Attacks
Joanna Cherry Excerpts(9 years, 10 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mrs May
I thank my right hon. and learned Friend for his comments, with which I agree. A number of mechanisms that we are part of within the European Union enhance our security. As I said in my statement, we need to co-operate on a global basis to defeat these terrorists. Co-operation with other countries, such as within the “Five Eyes” community, is important as well, but we can use mechanisms within the European Union that are of benefit to our security.
Joanna Cherry (Edinburgh South West) (SNP)
I welcome the tone of the Home Secretary’s statement, and I thank her for notice of it. I wish to associate myself and the Scottish National party with the comments of the Home Secretary and others in condemning outright these appalling and devastating attacks in Brussels. Our thoughts are with everyone affected in Brussels and across the globe. Like many other hon. Members of the House, I have spent time in the beautiful city of Brussels over the years, and I have friends and colleagues there. My heart goes out to its many diverse citizens. In addition, we must not forget those affected by the outrages in Turkey. I add the condolences of SNP Members to those of the rest of the House to all those across Europe who have lost loved ones in these terrible atrocities. Our thoughts and prayers are with all those affected, most particularly the family of the missing British national in Brussels. We sincerely hope that his partner and her sister will be successful in their efforts to locate him.
I wish to associate myself with the comments of the shadow Home Secretary and others about the gratitude we across the House feel to all those, whether the police or the intelligence services, who strive to keep us safe in the United Kingdom. I wish to reiterate the comments of Scotland’s First Minister that these terrorists must not succeed and that we must “unite as a community” to defeat such threats across the United Kingdom and across Europe.
The Scottish National party is committed to protecting the people of Scotland and to keeping our communities safe. While we are aware of the challenges we face from increasingly sophisticated criminals and terrorists, the Government in Scotland have committed to work with the UK Government to defeat these threats against the freedoms we value so dearly. I note that although the UK threat level has not been changed, and we are reassured that there is no specific threat in Scotland, the Scottish Government have taken swift action to place police patrols at airports and rail stations to increase reassurance.
The frightening statement from Daesh promising further attacks and saying that
“what is coming is worse and more bitter”
is the point at which I turn to the Home Secretary for reassurance. People right across the UK will be sitting at home worried for their families and their communities. What reassurances can the Home Secretary give the House about how safe we are in the United Kingdom? What action is her Department taking to ensure that we are protected from and capable of dealing with a future attempted attack? I note that the Home Secretary referred during her statement to the fact that all seven plots that have been disrupted in the UK were either linked to, or inspired by, Daesh propaganda. Does she accept the importance of undermining Daesh’s propaganda capabilities, particularly online, and what is she doing to address that?
Finally, as I have said many times in the House—I think others have acknowledged this—what is of the utmost importance when faced with such serious criminal and terrorist attacks is to ensure that our response is proportionate, targeted and effective. The terrorists aim to instil fear, to divide us and to destroy our freedoms and civil liberties, but we must not give into that narrative. We must ensure that, whatever additional measures are taken to keep our communities safe, they remain united. I am very reassured by what the Home Secretary said about remaining united with our Muslim brothers and sisters in Britain. I associate myself with what the shadow Home Secretary said, and I invite the Home Secretary to condemn Donald Trump’s comments on British media today. Will she assure me that she will keep the importance of our having a united community across the UK at the core of her efforts in fighting terrorism?
Mrs May
The hon. and learned Lady refers specifically to the issue of threat and to safety and security across the whole of the United Kingdom. As I have said and as she will know, the threat level from international terrorism is not set by Ministers; it is set independently by the joint terrorism analysis centre. It has maintained the threat level at severe, which means that an attack is highly likely. Against that background, as I also said in my statement, the police have increased their presence at certain key locations, notably at certain transport hubs, and we have increased the action taken by Border Force at various ports, and that is right. We will obviously keep those levels of activity under observation and monitor them according to the nature of the threat that we see.
It is for us all to be vigilant. I think the public should be alert, not alarmed. We do everything that we can to keep the public safe and secure. Underlying that, however, is of course the need for us to ensure that in particular our intelligence services—our security and intelligence agencies—are able to access the intelligence that enables plots to be disrupted. That means having the powers that we believe are right for them to have to be able to do that role.
The hon. and learned Lady talked about the counter-narrative. It is absolutely right that, as part of the work we do, we should deal with the poisonous ideology that is leading people to violence. That work is being done. We do such work through the counter-terrorism internet referral unit to ensure that pieces are taken down from the internet. The speed at which that happens—the number of items taken down—is now something like 1,000 pieces a week. That has increased significantly in the past year or so. We led on the establishment of an internet referral unit at Europol, which is now enabling that capability to be available not just in the United Kingdom, but across the European Union.
Investigatory Powers Bill
Joanna Cherry Excerpts(9 years, 11 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Joanna Cherry
On a point of clarification relating to the intervention by the right hon. and learned Member for Beaconsfield (Mr Grieve) about the letter to The Guardian signed by over 200 senior lawyers, is the right hon. Lady aware that the letter takes issue with bulk interception warrants and bulk equipment interference warrants, which even the Intelligence and Security Committee says should be removed from the Bill?
Mrs May
I will come on to talk about the bulk warrants, but it was clear from the Committee reports that the powers in the Bill are necessary. The ISC raised a question about the bulk equipment interception warrants, but, following that, the Government have produced further information on all bulk cases. We published some case studies and examples of how the powers would be used alongside the redrafted Bill.
Mrs May
I reiterate the point that I made previously and again just now: 100% of the compliance costs will be met by the Government. My hon. Friend asks me to provide a long-term commitment for that, and we are clear about that in the Bill. As she will be aware, it is not possible for one Government to bind the hands of any future Government in such areas, but we have been clear about that issue in the Bill and I have been clear in my remarks today.
Alongside the draft code of practice, I have published—at the Joint Committee’s request—a comparison of the differences between the proposals in the Bill and those set out by Denmark in recent years. I have also held further discussions with UK and US communications service providers on the proposals in the Bill, and we will continue to work closely with them as we implement this new power. As a guarantee of that, we have included a commitment that the Home Secretary will report to Parliament on how the Bill is operating within six years of Royal Assent. If Parliament agrees, it is our intention that a Joint Committee of both Houses will be formed five years after the Bill receives Royal Assent, specifically to undertake a review of the new legislation and to inform the Home Secretary’s report.
Part 5 of the Bill deals with equipment interference—for example, the acquisition of communications or information directly from devices such as computers or smartphones. By bringing existing powers into the Bill, we have responded to recommendations made by David Anderson, QC, and by the Intelligence and Security Committee. The Bill places those powers on a clear statutory footing, and makes their use subject to the issue of warrants that must be approved by a judicial commissioner.
Hon. Members will be aware that not only are those powers already available to law enforcement bodies, but they are vital to so much of their work to prosecute serious criminals. In exceptional circumstances, that capability is also used to deal with threat-to-life situations that fall short of serious crime, most typically to identify missing persons. For example, we would all expect that when a child goes missing and the parents know the password to their social media account, that the police should be able to use that password to search for vital clues. The Bill preserves capabilities that are already available to law enforcement, and makes it clear that they can be used to save lives. Nevertheless, these are intrusive powers and their use must be strictly limited. In future, all equipment interference warrants will require the approval of a judicial commissioner.
The draft code of practice, which I published alongside the Bill, constrains the use by law enforcement of more novel or advanced techniques that hon. Members might reasonably expect to be the preserve of the National Crime Agency and similar bodies. Equipment interference warrants may only be served on communications service providers with the personal agreement of the Secretary of State.
Alongside the draft codes of practice, and in response to recommendations of the Intelligence and Security Committee, we published a comprehensive public case setting out how bulk powers—for interception, communications data and equipment interference—are used, and why they are more necessary than ever before. There are, of course, limits to how much can be said about those most sensitive bulk capabilities without handing an advantage to criminals and those who mean us harm. For that reason, the security and intelligence agencies have provided further, classified detail about the use of those powers to the Intelligence and Security Committee.
As the publicly published case for bulk powers makes clear, such powers are vital to the effective working of the agencies. They have played a significant part in every major counter-terrorism investigation over the past decade, including in each of the seven terrorist plots disrupted since November 2014. They have been essential to detecting more than 95% of cyber-attacks against people and businesses in the UK identified by GCHQ over the past six months, and they enabled more than 90% of the UK’s targeted military operations during the campaign in the south of Afghanistan.
Part 6 of the Bill places these powers on a clearer statutory footing and makes them subject to robust and consistent safeguards. In future, bulk warrants will need to be authorised under the double lock regime that I have described. Furthermore, the examination of any data obtained under a bulk warrant will need to be for an operational purpose that has been approved by a Secretary of State and an independent judge.
Joanna Cherry
Other hon. Members have mentioned protection for the communications of parliamentarians. Does the Home Secretary agree that the provision in the Bill does not protect parliamentarians from having their communications to and from constituents scooped up by bulk collection provisions, or with communications data or internet connection records, which could lead to whistleblowers being identified?
Mrs May
I could give a variety of responses to those points. The hon. and learned Lady must be aware that certain bulk powers are predominantly those for foreign usage, rather than in relation to the United Kingdom. With bulk powers, where there is any interaction with individuals in the UK, the double lock authorisation is still necessary to ensure that the examination of the information is subject to the same sort of tests regarding necessity and proportionality.
Part 7 applies those safeguards to the retention and use of bulk personal datasets. Such information is already used by the security and intelligence agencies to keep us safe, and may be acquired under existing powers. However, the Bill introduces powerful new privacy protections so that the personal data of innocent people are always subject to strong robust safeguards, irrespective of how they were acquired.
I said that privacy safeguards are at the heart of this Bill, and the guarantor that those safeguards will be effective and adhered to—both in substance and in spirit—will be the new Investigatory Powers Commissioner, or IPC. Created under part 8 of the Bill, the commissioner, who will hold or have held high judicial office, will oversee a world-leading new oversight body, bringing together the existing responsibilities of the Interception of Communications Commissioner, the Intelligence Services Commissioner and the Chief Surveillance Commissioner. The new Investigatory Powers Commissioner will be provided with an enhanced budget and a dedicated staff of commissioners and inspectors, as well as technical experts and independent legal advisers. They will have access to the staff and systems of the agencies, and will have a remit to provide Parliament and the public with meaningful assurance about how the powers in the Bill are being used. When a person has suffered as a result of a serious error in how the powers in the Bill are used, the IPC will have a new power to inform the victim without the need to consult the Investigatory Powers Tribunal, which will itself stand ready to hear any claim and will have the power to quash warrants, award compensation or take any other remedial action it feels appropriate.
I turn now to part 9 of the Bill and clause 217, which provides for requests to be made to communications service providers to maintain permanent technical capabilities to give effect to warrants, and, in connection with that, to maintain the ability to provide copies of communications in an intelligible form. Let me be clear: this provision only maintains the status quo. It allows law enforcement and the security and intelligence agencies to ask companies to remove encryption that they have applied or that has been applied on their behalf. It would not—and under the Bill could not—be used to ask companies to do anything it is not reasonably practicable for them to do.
Finally, alongside the Bill, we have taken forward the recommendation made by Sir Nigel Sheinwald to develop an international framework to ensure that companies can disclose data, a point I made in response to my hon. Friend the Member for The Wrekin (Mark Pritchard). We are in formal negotiations with the United States Government and are making good progress. The provisions in the Bill are drafted to accommodate any such agreement. Any company co-operating with its obligations through an international agreement will not be subject to enforcement action through the courts.
The Bill provides unparalleled transparency on our most intrusive investigatory powers, robust safeguards and an unprecedented oversight regime, but it will also provide our law enforcement and intelligence agencies with the powers they need to keep us safe. Because of its importance, our proposals have been subject to unprecedented levels of scrutiny, which has resulted in a Bill that really does protect both privacy and security—it is truly world-leading. I look forward to the revised Bill now receiving full and careful consideration by both Houses. I commend it to the House.
Andy Burnham
I disagree. I am making a legitimate point about which we feel strongly. I am saying that the most intrusive powers in the Bill should be strictly limited to national security. The hon. Gentleman has a different view, but I believe that serious crime and national security should be the strictly limited grounds on which the most intrusive warrants are applied for. I hope that he will approach the issue in a spirit similar to the one in which I have approached it: I hope that he will look into the concern that I have raised in more detail and try to understand why Labour Members feel so strongly about it.
Joanna Cherry
The hon. and learned Member for South East Cambridgeshire (Lucy Frazer) talked about barristers presenting cases to judges. Does the right hon. Gentleman agree that, given the double-lock model in the Bill, there will be no barristers arguing the case before the judicial commissioner? That is exactly the point. There will be no gainsayer and no proposer; there will simply be a judicial review, an exercise carried out by the judicial commissioner on his or her own.
Andy Burnham
That is an important point, which I shall come to in a moment.
I was talking about bulk powers. Important concerns were raised by the Intelligence and Security Committee about scope, oversight and the more generic class warrants, and I do not believe that they have been adequately answered. One of the Joint Committee’s recommendations was that the Government should establish an independent review of all the bulk powers in the Bill. Given the complexity and sensitivity of the issue, I think that the House would benefit from that, so my specific ask is for the Home Secretary to commission such a review, to be concluded in time for Report and Third Reading.
Our fifth concern is about judicial oversight, and relates to one of our earliest demands in respect of the Bill. The Government have given significant ground in this area, and, as the Home Secretary said, the Bill is stronger as a result. However, we believe that it could be stronger still. It currently says that, when deciding whether to approve a decision to issue a warrant, a judicial commissioner must apply
“the same principles as would be applied by a court on an application for judicial review.”
The point has just been made by the hon. and learned Member for Edinburgh South West (Joanna Cherry).
I have previously shared with the Home Secretary my fear that that could mean a narrower test, taking account of only the process and reasonableness of the Home Secretary’s decision rather than the actual merits and substance of an application. I was listening carefully to what she said at the Dispatch Box earlier, and I thought I heard her provide reassurance that a much broader consideration could be provided by a judicial commissioner. I hope that that is the case, and if it is, why not delete the judicial review clause from the Bill? That would make it absolutely clear this is not just a double lock but an equal lock, in which the judicial commissioner has the same ability look at the entire merits of the case.
Our sixth and final concern relates to the misuse of the powers. I accept the concerns of the Police Federation that there need to be safeguards for the collection of data in a lawful manner, but I also agree with its view that the Bill needs to make it clearer that an overarching criminal offence is created for the deliberate misuse of any of the powers. That should relate to the obtaining of data and to any use to which those data are subsequently put. Both should be a criminal offence. That would provide an extra safeguard for the public.
I have set out six substantive issues that must be addressed. Given the seriousness of these concerns, people have questioned why we are not voting with the Government tonight—[Interruption.] We are voting neither with them nor against them. The simple answer is that we need new legislation but the Bill is not yet good enough. That is why we have set these tests. Simply to block this legislation would in my view be irresponsible. It would leave the police and security services in limbo and, as communications migrate online, that would make their job harder. We must give them the tools they need to do the job. If we did not put new legislation on the statute book, we would leave the public exposed to greater risk because they would not have the safeguards that are in the Bill.
However, let me be clear that there is no blank cheque here for the Government. We will not be voting for the Bill tonight because it is some way from being good enough, and if the Government fail to respond adequately to the concerns I have raised, I give notice to them that we will withdraw our support for the timetabling of the Bill. It is as simple as that. The public interest lies in getting this right and in not sacrificing quality to meet the deadline. The time has come for the House to lay politics aside and to find a point of balance between privacy and security in the digital age that can command broad public support.
We on these Benches have worked hard to uncover the truth about some of the dark chapters in our country’s past precisely so that we can learn from them and make this country fairer for those coming after us. I want a Bill that helps the authorities to do their job but protects ordinary people from intrusion and abuse by those in positions of power. I also want Britain to be a country that gives its people individual privacy and collective security. Our shared goal should be a Bill that enhances our privacy, security and democracy and—with goodwill and give and take on both sides—I believe that that is within our grasp.
Joanna Cherry (Edinburgh South West) (SNP)
Before I begin my speech, on behalf of the Scottish National party I want to associate myself with the comments of the Home Secretary and shadow Home Secretary regarding the death of the prison officer in Northern Ireland and extend my party’s heartfelt condolences and sympathies to his family, colleagues and friends.
The SNP joins the MPs from all parties in the House who have grave concerns about many aspects of the Bill. We do not doubt that that the law needs a thorough overhaul and welcome attempts to consolidate a number of statutes in order to have a modern, comprehensive law. We also recognise that the security services and police require adequate powers to fight terrorism and serious crime. However, such powers must always be shown to be necessary, proportionate and in accordance with the law. In particular, powers must not impinge unduly on the right to privacy or the security of private data. We feel that many of the Bill’s powers do not currently pass those tests. For that reason, the SNP cannot give its full support to the Bill in its current form. We intend to join others in the House to ensure that the Bill is as extensively amended as possible. We shall be abstaining today, but if the Bill is not amended to our satisfaction, we reserve the right to vote against it at a later stage.
The Bill is a rushed job that comes on the back of a draft Bill that lacked clarity and did not go far enough to protect civil liberties. In recent weeks, three parliamentary Committees have expressed significant misgivings about many aspects of the draft Bill and made extensive recommendations for its revisal. The Bill was published barely two weeks after the ink was dry on the last of those three reports, leaving insufficient time for the Government to go back to the drawing board to deal adequately with the concerns expressed by the three Committees. Like others in the House, SNP Members were concerned to read last week that the United Nations special rapporteur on the right to privacy concluded that some of the Bill’s proposals fail the benchmarks set in recent judgments of the European Court of Justice and the European Court of Human Rights. [Interruption.] Government Members may scoff, but I invite them to read his report as it contains a careful exploration of recent case law and should not be dismissed lightly.
The benchmarks suggest that surveillance should be targeted by means of warrants that are focused, specific and based on reasonable suspicion. Under the Bill, however, targeted interception warrants may apply to groups of persons or more than one organisation or premises. Bulk interception warrants lack specificity and lack any requirement for reasonable suspicion, giving licence for speculative surveillance. The shadow Home Secretary questioned whether we should be using the term “mass surveillance” in relation to this Bill, and I wonder whether it would be more accurate to say that aspects of the Bill permit “suspicionless surveillance”, which leads to civil liberties concerns. Another aspect of the Bill that concerns us is that an actual threat to national security is not required.
The powers to retain internet connection records and the bulk powers go beyond what is currently authorised in other western democracies and thus could set a dangerous precedent and a bad example internationally. The only other western democracy to authorise the retention of material similar to internet connection records was Denmark, which subsequently abandoned its experiment having found that it did not yield significant benefits for law enforcement. I see the Home Secretary looking at me and I am sure that she will argue that her proposed scheme differs from Denmark’s, but the devil is in the detail, which we will need to consider closely in Committee. The USA is rolling back from bulk data collection having found it to be unconstitutional in some cases and of questionable value in fighting terrorism. It is for this Government to justify why they alone are required to go so much further than other Governments in western democracies. Such operational cases as have been produced are anecdotal and hypothetical and do not constitute independent evaluation of the utility of bulk powers.
Lucy Frazer
If the hon. and learned Lady thinks that international comparisons are important, does she agree that the judicial authorisation procedure proposed by the Home Secretary goes further than in other European examples, such as Germany, the Netherlands and France?
Joanna Cherry
We need to compare apples with apples and oranges with oranges. A more correct comparison is with jurisdictions such as Canada and America, the systems of which are more similar to ours than the continental European jurisdictions that the hon. and learned Lady describes, but I will come back to that when I get to authorisation.
I am sure everyone in this House wants to get the balance right between protecting civil liberties, and giving the security services and the police the necessary and proportionate powers to fight serious crime and terrorism. However, we in the Scottish National party believe that the Government’s attempt has not got that important balance right and we are looking forward to working with other parliamentarians to try to get it right. We are worried that the Government are not giving sufficient time for the consideration of this enormous Bill. The 14 Home Office documents relating to the Bill that were released to Parliament on 1 March, including the Bill itself, extend to 1,182 pages, which is almost treble the amount of material released with the draft Bill last November. There is a suspicion that the amount of material being released in large tranches, coupled with relatively short timescales within which to consider and amend proposals, is an indication that the Government do not really want proper parliamentary scrutiny of this. We are determined to do our best to make sure that sufficient parliamentary scrutiny is provided.
Mrs May
Let me be absolutely clear about this. I have been in this House long enough to see Bills go through the House where parliamentarians have complained when the Government have failed to bring codes of practice that should sit alongside the Bill to the House at the very first stage of the debate. This Government have brought those codes of practice to the House more than several days before Second Reading, precisely so that Members of this House have an opportunity to see them and consider them alongside the Bill.
Joanna Cherry
The Home Secretary misunderstands my complaint—it is not about the fact that the material has been produced. My complaint is that the material has been produced with a timescale following thereon that is not sufficient for us to scrutinise it properly. I must make something crystal clear before I go any further: the SNP will not be morally blackmailed or bullied by Conservative Members into blind support for a Bill of dubious legality in some respects, which seeks powers that go beyond those of other western democracies. We are not going to tolerate any suggestion that by seeking proper scrutiny of the Bill and full justification for the far-reaching powers sought, we are being soft on terrorism and serious crime. I would associate myself with the other main Opposition party in that respect.
Let me give hon. Members an example of why they can be assured that the SNP is not soft on terrorism or serious crime. We have been in government in Scotland for nine years and we have shown ourselves to be a responsible Government. Although issues of national security are reserved, we have always co-operated closely with the UK Government, for example, when Glasgow airport was attacked by terrorists in 2007. Our record in fighting crime in Scotland is second to none. The Scottish Government have got recorded crime down to a 41-year low and we are committed to a progressive justice policy. We will not, therefore, stand accused of being “soft” on serious crime or terrorism, because that is simply not a fair statement to make.
In the coming years, we confidently expect to be devising the security policy of an independent Scotland, and it will be a responsible security policy that will not only seek to work closely with near neighbours on these islands, but will look to international models from other democracies and strive to take proper cognisance of international human rights norms and the rule of law. That is all we are about in our opposition and in our scrutiny of this Bill.
Our concerns about the Bill are not just our concerns. They are shared by: the parties sitting around me; many Conservative Members sitting opposite me; many of the members of three parliamentary Committees; non-governmental organisations; the technical sector; eminent legal commentators—more than 200 senior lawyers signed that letter in The Guardian today; communications service providers; and the UN special rapporteur on the right to privacy. [Interruption.] I hear somebody shout confidently from the Government Benches that the 200 lawyers who signed that letter are wrong. I suggest that he or she—I think it was probably a he—looks at the list of those who signed it and perhaps accords them a bit more respect; there is room for a difference of opinion here.
Sammy Wilson (East Antrim) (DUP)
For clarification, so that the hon. and learned Lady is not seen to be speaking for my party, may I ask whether she accepts that the balances in the Bill that the Secretary of State has outlined are, by and large, supported by people in Northern Ireland, simply because we have gone through the experience of terrorism and know how important such safeguards are for the general public?
Joanna Cherry
I always listen carefully to what the hon. Gentleman and his colleagues have to say because, as he says, they have experienced terrorism—indeed, they are, sadly, still experiencing it as a result of the tragic news we heard today. I apologise if I in any way included him in a sweeping statement, but I do not agree with him that the Government have got the balance right, and that is the whole purpose of my speech today.
The point I am seeking to make is that it is the job of a responsible Opposition not only to oppose responsibly and to scrutinise, but to articulate and inform public concerns. The public are concerned about this, and there is greater public knowledge about this Bill than perhaps there was last time around. A survey commissioned by Open-Xchange found that only 12% of the public believe that the Home Secretary has adequately explained the impact of the Bill to the UK public and presented a balanced argument for its introduction. I suspect that it is possibly a little unfair, pinning it all on the Home Secretary, because it is the responsibility of all of us in this House to inform our constituents about this Bill and where it is going.
Joanna Cherry
I hope the hon. Gentleman will not mind if I make some progress for the time being and possibly give way later. I mentioned the letter to The Guardian. I am conscious that the right hon. and learned Member for Beaconsfield (Mr Grieve), the former Attorney General, has expressed his view on the matter. I would always accord that the respect it deserves, but I respectfully disagree with him. The letter to The Guardian from the lawyers today was focused initially on the problem of bulk intercept. Even the Interception of Communications Commissioner’s Office, the independent watchdog, has said that bulk intercept provides “generalised initial interception”, and that is the issue here—it is the generality, and the lack of focus and specificity, that the lawyers are worried about.
Mr Grieve
I should emphasise that I take the letter seriously, because I regard it as a serious matter. If what was happening was what was set out in the first objection by those writing it, it would be a very serious matter indeed: the House would be sanctioning a system by which there was generalised access to electronic communications, in bulk. The point at issue is that that is not what actually goes on at all. Not only that, but if one looks at the Bill, one sees that it is clear that that should not be able to go on and that we will prevent it from happening if there is any possible risk of it. We have been round this issue on many occasions, and this is why there is a difficulty of communication and understanding on something that is fundamental to the way in which the agencies go about this work.
Joanna Cherry
I can only reiterate that I and many others, including more than 200 lawyers who signed this letter, disagree with the right hon. and learned Gentleman on this occasion and about this point. One thing that this issue illustrates is the importance of having very focused language in Bills dealing with such major matters of constitutional importance, rather than having vague language, which is not properly understood and which can on a later day be twisted by those it suits, to expand to cover powers that were not envisaged at the time. We are all well aware that that has happened in the past.
We should not dismiss too lightly the importance of the notion of the rule of law overarching this Bill. If the Government really want this legislation to be world-leading, they cannot have legislation that potentially violates international standards. As things stand, the UK is still bound by the jurisdiction of the European Court of Justice; there were no proposals to withdraw from the charter of fundamental rights in the agreement negotiated by the Prime Minister over Europe last month. We are still awaiting proposals for the repeal of the Human Rights Act, but the Government have recently been moving to reassure us that we will not be withdrawing as a signatory from the Council of Europe. We are therefore still going to be bound by the Court in Luxembourg and the Court in Strasbourg. Many distinguished lawyers believe that if this Bill is not significantly amended, the law of the UK will be on a collision course with those European Courts. I remind the Government that an unamended Bill could result in unnecessary and expensive litigation. It could require Parliament to revise the law all over again at some point in the future. That should not happen, provided that we ensure that the law meets international standards. [Interruption.] I hear Government Members shouting at me, “Which parts?” I will come to that when I get into the meat of my speech. [Interruption.] I suggest that they read the report that has come from the UN rapporteur on the right to privacy, and consider the law here. They may prefer to follow in the footsteps of Russia, which last December passed a law allowing its constitutional court to decide whether to comply with international human rights courts, but I would suggest that, on these matters at the very least, Russia is perhaps not the best role model for the United Kingdom.
I want to challenge the premise that the more privacy we sacrifice, the more security we gain, because that is not backed up by the evidence. Indeed, some of this House’s Committees have heard evidence that swamping analysts with data can impede investigation, because they are unable to find the crucial needles in the haystack of information before them. We should be looking at how to achieve security in a really intelligent way, not blanket data retention and suspicionless surveillance.
The Home Office responded to the Intelligence and Security Committee’s recommendations by simply adding one word to the start of the Bill so that the first part now refers to “privacy”. It has not, however, added any detail relating to any overarching principles of privacy. Its response to the ISC seems somewhat cynical.
I have indicated that the SNP is concerned about a number of aspects of the Bill. Time does not permit me to tackle all of them, but I am concerned about four in particular. I will endeavour to keep my comments to a minimum, bearing in mind that I speak on behalf of the third party in the House.
Our first issue with the Bill is the legal thresholds for surveillance; the second is the authorisation process, which the shadow Home Secretary has already talked about; the third is the provision for the collection of internet connection records; and the fourth is bulk powers, which I have already mentioned.
On the legal thresholds for surveillance, the Government essentially want to re-legislate on RIPA’s three broad statutory grounds. The SNP is not alone in its concern that those grounds are unnecessarily broad and vague and dangerously undefined. The Joint Committee on the draft Bill recommended that it should include definitions of national security and economic wellbeing, but that has not been done. The ISC recommended that economic wellbeing should be subsumed within a national security definition, finding it “unnecessarily confusing and complicated”. Those recommendations have been dismissed and the core purposes for which extraordinary powers can be used remain undefined and dangerously flexible.
On the authorisation of warrants, we welcome the move towards greater judicial involvement, and we acknowledge the fact that the Government have moved considerably towards the double lock. However, I agree with the shadow Home Secretary, because we also want an equal lock. Judicial review is not the same as judicial authorisation. Judicial review creates the illusion of judicial control over surveillance, and it does not achieve enough movement away from the status quo.
I want to give some concrete examples of that. The case law of the United Kingdom Supreme Court shows that, in civil proceedings that do not relate to deprivation of liberty, a less intensive standard of judicial review is applied—more Wednesbury reasonableness than strict necessity and proportionality—and that is why many fear that that is what will happen if the Bill is passed unamended. There will be little or no scope for review on the merits.
Suella Fernandes
Will the hon. and learned Lady accept that she is simply wrong? In their evidence to the Joint Committee, of which I was a member, Sir Stanley Burnton, senior judicial commissioner, and Lord Judge, senior surveillance commissioner, were clear that the Wednesbury unreasonableness standards had no place in this context. The wording of the Bill is clear, importing a clear judicial review standard involving necessity and proportionality.
Joanna Cherry
The hon. Lady will no doubt be unsurprised to hear that I do not accept that I am wrong. She is cherry-picking her way through the evidence that was heard. There was evidence contrary to the position that she has stated. I accept that there is a debate about this point, but I take the side that the review of judicial review principles does not go far enough. Why not go as far as other countries? Why not have one stage of judicial authorisation? That is the norm in comparable jurisdictions, by which I mean the United States, Australia and Canada. Judicial authorisation would help us, because it would encourage co-operation from US technology firms.
On a practical note, a two-stage process—whereby the issue goes to a Minister first and then to a judicial commissioner—risks delay. There is a huge volume of surveillance warrants, and it looks like there will be an awful lot more as a result of this Bill. It is unsuitable for a small number of Cabinet Ministers to deal with them.
I want to deal with another false premise that is often used to justify ministerial involvement in the issuance of warrants. Some people seek to argue that Ministers are democratically or politically accountable to this House on the issue of surveillance warrants, but that is a misconceived argument. Ministers are not really democratically accountable for their role in issuing warrants, because, first, the disclosure of the existence of a warrant has been criminalised and it will remain as such under the Bill. Secondly, all of us know—even those such as me who have been in this House for only nine months—that requests for information concerning such matters in this House are routinely parried with claims about national security. I do not accept that Ministers are practically, politically or democratically accountable to this House on the issuance of warrants. To return to the jurisprudence of the Strasbourg Courts, they have made it very clear that it is important to have effective supervision by an independent judiciary. We query whether the double lock mechanism meets that test.
We agree with many others that the case for collecting internet connection records, including the claimed benefit for law enforcement, is flawed. That is not just my say-so: there are many concerns across the industry. People who understand the technicalities far better than I do have explained the problem to me. I again associate myself with what the shadow Home Secretary said: the internet is not like the telephone system. An internet connection record cannot be compared to a telephone bill. The phone system consists of a set of records relating to when A calls B. If we collect phone system records, we will see at what time A called B and the duration of the call. As I understand it, the internet is more like a mailbox that collects packets of information and then takes them from A to B.
To take a rather middle-aged example, if somebody uses the Facebook messenger service, all the internet connection record will show is that he or she has connected to Facebook messenger. It will not show with whom he or she then communicated, because that occurs at a higher or lower level or in another unreachable packet. The internet connection record will not show the when, where and who that the Government say they want, and which they already get from phone records.
What the internet connection records will show is a detailed record of all of the internet connections of every person in the United Kingdom. There would be a 12-month log of websites visited, communication software used, system updates downloaded, desktop widgets, every mobile app used and logs of any other devices connected to the internet. I am advised that that includes baby monitors, games consoles, digital cameras and e-book readers. That is fantastically intrusive. As has been said, many public authorities will have access to these internet connection records, including Her Majesty’s Revenue and Customs, and the Department for Work and Pensions, and it will be access without a warrant. Do we really want to go that far? There is no other “Five Eyes” country that has gone as far. David Anderson QC said:
“Such obligations were not considered politically conceivable by my interlocutors in Germany, Canada or the US”
and therefore, he said, “a high degree of caution” should be in order.
Finally, let me turn to bulk powers. I have already made the point that even the Interception of Communications Commissioner’s Office says that bulk provides at the outset generalised initial intercept. We became aware of these bulk interception programmes only when they were disclosed by Edward Snowden in June 2013—whatever Members think about those disclosures and whether they were appropriate, that is how we became aware of the matter. This House has never before debated or voted on bulk powers, so we are being asked to do something very novel and very challenging, and we must do it properly.
The power to conduct mass interception has been inferred from the vaguely worded power in section 8(4) of RIPA, which illustrates the danger of vaguely worded legislation. Targeting bulk warrants at a telecommunications system or at entire populations rather than at specific individuals is a radical departure from both the common law and human rights law, yet that is the approach that will be maintained in this Bill. In many respects, that is the most worrying part of the Bill. Indeed, it is the part of the Bill about which the UN special rapporteur on privacy is most concerned. Let me read what he said, because it is very respectful of the tradition of the United Kingdom and it makes some very good points. He said:
“It would appear that the serious and possibly unintended consequences of legitimising bulk interception and bulk hacking are not being fully appreciated by the UK Government. Bearing in mind the huge influence that UK legislation still has in over 25% of the UN’s member states that still form part of the Commonwealth, as well as its proud tradition as a democracy which was one of the founders of leading regional human rights bodies such as the Council of Europe, the SRP encourages the UK Government to take this golden opportunity to set a good example and step back from taking disproportionate measures which may have negative ramifications far beyond the shores of the UK. More specifically, the SRP invites the UK Government to show greater commitment to protecting the fundamental right to privacy of its own citizens and those of others and also to desist from setting a bad example to other states by continuing to propose measures, especially bulk interception and bulk hacking, which prima facie fail the standards of several UK parliamentary Committees, run counter to the most recent judgements of the European Court of Justice and the European Court of Human Rights, and undermine the spirit of the very right to privacy.”
The rapporteur is appealing to the better tradition in this country, and saying that we should look at this Bill very carefully. He is suggesting not that we should throw it out, but that we scrutinise it very carefully, bearing in mind how far it intends to go in comparison with other countries and with existing international case law.
Andy Burnham
The hon. and learned Lady has made a very good speech this afternoon. Government Members should be working a little harder to reach out and build consensus. Before she finishes, may I invite her to say whether she will be supporting our call in Committee and on Report to make internet connection records accessible only through a warrant based on serious crime, not any crime, to give protection, and also for a clear definition of national security?
Joanna Cherry
Those are both issues on which we will work with the Labour party. I have already indicated that we intend to attempt to amend the Bill extensively in Committee. We are very concerned about internet connection records. We query whether their retention is necessary or appropriate at all, but we will look seriously at proposals put forward by other parties and will work with them.
The SNP is in favour of targeted surveillance. We welcome the double lock on judicial authorisation as an improvement, but it does not go far enough. Our concern is, quite clearly, that many of the powers sought in this Bill are of dubious legality and go further than other western democracies without sufficient justification. It is for that reason that we cannot give this Bill, in its current form, our full support. We will work with others to attempt to amend it extensively. Today, we shall abstain, but if the Bill is not amended to our satisfaction, we reserve the right to vote it down at a later stage.
Rebecca Harris (Castle Point) (Con)
I am delighted that we are finally bringing forward this long-overdue Bill. Cases such as Apple’s dispute with the FBI underline how modern criminals can hide behind modern technology. Criminals and terrorists are international and depend on international networks and systems. I could recite a list of the hideous terrorist atrocities that have happened throughout the world over the past year, but only today we heard of the tragic death of Adrian Ismay, the prison officer who was attacked in Belfast 10 days ago. Since the debate began, the news has been reporting armed raids in Brussels relating to last year’s Paris attacks, so we are doing current and vital work today. Such criminal acts do not simply happen and are rarely the work of individuals; they are highly organised events planned by groups, and we need to be able to uncover those networks.
The Bill is about not only terrorist activity, but all kinds of crime, such as serious and organised crime, child abduction, people smuggling and, most horrible of all, child pornography, which, horrendously, is the fastest-growing form of online business. One can now even arrange child abuse to order online. I have seen at first hand the work of the police who are trying to tackle online child pornography and it is tough, horrible, but necessary work. We must not allow their hands to be tied as a result of some wrong-headed, neurotic anxiety about data retention.
The UK is lucky to be protected by the finest, most-principled security services in the world. Their job is to conduct themselves in private to protect all the freedoms that we take for granted most of the time, yet enormous public damage was done when a previous attempt to update investigatory powers legislation was dubbed the snoopers charter. It was a gross distortion of the legislation’s aims to imply that the British Government were somehow trying to spy on their own citizens. It was just straightforward political scaremongering.
Joanna Cherry
Will the hon. Lady acknowledge that Opposition Members have been careful today not to use “snoopers charter” and have tried to be measured in their important criticisms?
Rebecca Harris
I absolutely appreciate that. I was not pointing my finger at any political party in particular, but some campaign groups outside the House may have used the term.
Many constituents, perfectly ordinary, good, law-abiding people, have written to me in the genuine, albeit absurd, belief that there is—or will be—some vast room full of security personnel trawling through their Facebook profiles and the pictures of their grandchildren and their cats. As legislators, we cannot just reassure people that we would need a security service the size of the population of China to do that and simply cannot afford it, even if we had the inclination, so I am glad that the Bill clearly sets out the four key purposes that data retention and investigatory powers cover. I hope that that will reassure those who have been worried and frightened. I also appreciate the benefits of the double lock, the extra judicial oversight of which will also reassure the public, although I would like to be reassured myself that that oversight will not hamper the investigative abilities of our security services and police. There are many wonderful hon. and learned Members here today but, as I sometimes hear, lawyers can often have very different views on tiny subjects when the straightforward common sense of my constituents would know exactly when we needed to regulate on something. I wish to be reassured that we are confident that we will not over-burden the process of warrantry, to the extent that security services personnel may feel that perhaps it is a little too much effort to go down that route, given that time may be of the essence and they will need to act with speed.
We all know that we are targets for international terrorists, and that the things they hate and target us for are our freedoms, democracy and liberty. We must therefore make it clear that this Bill ensures we protect those freedoms and is in no way any form of attack on them.
Alex Chalk (Cheltenham) (Con)
Striking the right balance between liberty and security is one of the most difficult judgments we have to make as a society. Anyone who has prosecuted and defended in our criminal courts—I see several here—well understands the tension that exists between the need to protect the public from harm and preserving our precious individual freedoms. This is therefore an immensely difficult issue, and if we get it wrong, the consequences are indeed serious. But the fact that we are able to approach this Bill in a calm atmosphere, and not against a backdrop of the panic and emotion of a recent outrage, is in no small part due to the constituents of mine working at GCHQ. Their quiet, brilliant work saves lives. They avoid the limelight and do not seek our thanks, but we owe them a profound debt of gratitude.
It would be a great mistake for calmness to give way to complacency, as serious plots are thwarted with alarming regularity. Before I came to this place, I was part of the team that prosecuted five young British jihadis who had travelled from Birmingham to Dewsbury intending to detonate an improvised explosive device filled with nails at a public rally. Had the plot succeeded, the potential for carnage would have been horrifying, and I have no doubt that we would be experiencing the repercussions today.
In my experience, the people in the intelligence agencies I have met, both as a barrister prosecuting terrorism offences and since my election, are scrupulous about remaining within the law. That means we have a covenant with them. We must provide them with a piece of legislation that gives them the tools to keep us safe, but we also owe it to them to create a framework containing the safeguards needed to command public confidence—nothing less than that will do. I believe that this Bill gets that balance broadly right and it deserves a Second Reading. That judgment has been possible because the Government have listened carefully and responded in appropriate detail to the legitimate concerns raised by the Joint Committee on the Draft Investigatory Powers Bill, the Intelligence and Security Committee and the Science and Technology Committee. However, valid points have been raised today, for example on whether we ought further to limit the pool of agencies to which ICRs can be available, and on the threshold for the type and seriousness of criminality that ought to trigger their use. Those legitimate points have been properly raised, but they can be raised in Committee.
I do not have the time to examine more than a fraction of what this Bill contains, but I wish to say a few words about bulk powers. The bulk data powers in the Bill are not new. The law today has long allowed the security and intelligence agencies to acquire bulk data under RIPA and so on. Those powers underpin a significant proportion of what our security services already do.
Joanna Cherry
Does the hon. Gentleman accept that at the time the Act he has just mentioned was passed, bulk powers were not in people’s contemplation? Therefore, although that Act may have been retrospectively interpreted to cover bulk powers, they have never before been debated or voted on by this House.
Alex Chalk
The hon. and learned Lady is absolutely right about that, but what is important about this Bill is that it shines a light on precisely those powers: it clarifies and consolidates them; it unifies them into a single document; and, crucially, it strengthens the safeguards that govern the security and intelligence agencies’ use of them. That is precisely why this legislation is so important. Crucially, in future, warrants for bulk powers will need to be authorised by a Secretary of State and approved by a judicial commissioner, which means we can be satisfied that those powers will be issued only where it is both necessary and proportionate to do so. Each warrant must be clearly justified and balance intrusions into privacy against the expected intelligence benefits.
There is so much to say, but time is limited. The upshot is that this Bill is not the finished article, but it forms the basis of a strong piece of law. I believe it can have as positive an impact as the Police and Criminal Evidence Act 1984, by updating and clarifying the law for those having to apply the relevant powers, while strengthening safeguards for those who are subject to them. If we get the detail right, I believe this Bill has the potential to become world-leading legislation. We should give this Bill a Second Reading.
Oral Answers to Questions
Joanna Cherry Excerpts(9 years, 11 months ago)
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James Brokenshire
No, I do not accept that, and these issues of the welfare of the child are absolutely part of our consideration. This matter was considered by the Court of Appeal and our approach was firmly upheld. When the threshold was set in November 2011, the MAC gave the lower threshold of £18,600 but also advised that the threshold could have been set as high as £25,700. The Government reflected and set the current level, which has been upheld by the courts.
Joanna Cherry (Edinburgh South West) (SNP)
The Minister mentions the Court of Appeal, but of course the matter is not entirely settled because this week the Supreme Court will hear the cases of two British nationals who cannot meet the tough financial rules that would allow their non-European Union spouses to come to live with them. The hon. Member for Hampstead and Kilburn (Tulip Siddiq) mentioned Skype. According to the Children’s Commissioner for England, 15,000 British children are growing up in Skype families, where the only contact they have with one parent is via Skype. How can the Minister justify the stress and anxiety caused to these children by the inflexible and unjust rules?
James Brokenshire
I do not accept the characterisation that the hon. and learned Lady presents—indeed, I do not recognise the number she proffers. This is about ensuring good integration, which is part of the overall requirement in relation to language. This is about not only not imposing a burden on the taxpayer but about promoting integration, and we believe the policy is effective in doing that.
Joanna Cherry
Last year, the Conservative think-tank, Bright Blue, called on the Government to change these rules, noting
“the significant contribution millions of low paid Britons make to our economy and society, as well as the value of having families living together in the same country.”
If the Minister will not listen to the Opposition, will he at least listen to a think-tank from his own party and get rid of these rules, which discriminate against hard-working families?
James Brokenshire
I say again that we do not believe the rules are discriminatory in the way the hon. and learned Lady suggests. The system is in place to ensure good integration. It ensures that people are not a burden on the taxpayer, and I would have thought she recognised that as being a positive aspect of the policy. If people come here, contribute and settle, we welcome that, but the rules have been set in the way they have, this has been upheld by the courts and we will continue to underline those key themes.
Migration into the EU
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Joanna Cherry (Edinburgh South West) (SNP)
It is a pleasure to serve under your chairpersonship, Mr Rosindell.
Contrary to what the hon. Member for Gravesham (Mr Holloway) has just said, we are facing a refugee crisis in Europe, not a crisis involving economic migrants. I will particularly address the plight of women and child refugees. The First Minister of Scotland has said that we should be in no doubt that what we are witnessing is a humanitarian crisis on a scale not seen in Europe since the second world war. Most of the people travelling through Turkey, Greece and the Balkans to try to get to western Europe are doing so because they are desperate. The images of their suffering will continue to haunt our consciences and the reputation of this union of nations for many generations to come if we do not do more collectively to help them.
The hon. Gentleman spoke about public opinion. In so far as I can judge public opinion in my constituency of Edinburgh South West, the vast majority of emails that I have received—many hundreds have come in batches and waves since September—have been asking this Parliament to encourage the Government to do more for the refugees in Europe, as opposed to doing nothing or less.
I recognise that the UK Government are making a substantial contribution to humanitarian initiatives on the ground in some of the countries that refugees are coming from, and I recognise the significant financial contributions that have been made to aid. I also recognise the United Kingdom’s commitment to take 20,000 vulnerable refugees over the next five years, but I regret to say that I do not believe those initiatives are enough. We, as a union of nations, are required to do more, and we are required to encourage the European Union to have a better co-ordinated response. We also need greater international effort through the United Nations.
I often hear what the hon. Gentleman said about the moral argument—that if we encourage people to come, we are simply throwing them into the arms of people smugglers and encouraging them to take their life in their hands. If one looks at the situation in the round, these refugees have not been met with a particularly welcoming attitude in Europe—certainly our union of nations has not been welcoming to them—yet they are continuing to come, so I feel that that moral argument falls down somewhat.
The majority of these people are refugees, not economic migrants. They are, of course, seeking a better life, but their main reason for doing that and leaving their countries is that those countries have been destroyed or deeply compromised by conflict. It is particularly inappropriate for the United Kingdom to wash its hands of taking any of the people who are now in Europe given that we have joined in with those conflicts. Whatever the rights and wrongs of that, and there were respectable arguments on both sides, as a Parliament we took the view that we would join those conflicts and interfere in other countries’ civil wars by dropping bombs, which is all the more reason for not washing our hands of responsibility for some of the refugees who are coming to Europe.
I strongly believe that the United Kingdom should take a fair and proportionate share of the refugees who are now in Europe. How we go about doing that, and how we address the situation, is complex, but it is fundamentally morally wrong—I use the word “morally” advisedly on Ash Wednesday—for us to say that we will do nothing for these people who are so desperate. I recognise that we are helping them in their own countries and on the ground, but people are coming to Europe in droves. We see their suffering on the news every night, and it is wrong for a relatively wealthy union of nations such as ours to do nothing about it.
Mr Holloway
I see where the hon. and learned Lady is coming from, and I appreciate the great good will that she shows to all these people, but in law they are not refugees. Someone is a refugee until they find refuge in a safe country, and at that point, although apparently they can later be designated as a refugee, they are an economic migrant.
My other point is that just because someone comes from, say, Afghanistan, it does not necessarily mean that they are fleeing violence. I met a guy from Afghanistan the other day in the “jungle” camp in Calais who comes from a part of the country where there is no fighting. We need to wise up.
Joanna Cherry
As the hon. Gentleman probably knows, I am a lawyer, but in this situation the niceties of whether these people are refugees in law matters not. We did not bother ourselves unduly in the United Kingdom about the legal position of the Jewish children when we took them in on the Kindertransport, or about the legal position of the Ugandan refugees. Even the former Prime Minister, Margaret Thatcher, was persuaded to take some of the Vietnamese boat people. So this is not a debate about legalities; it is a debate about the correct humanitarian response, the responsibility of the world’s relatively wealthy nations to take responsibility for people who are suffering greatly and our particular responsibility to do that when we have chosen to become involved in the conflicts that are creating refugees. I hasten to add that I make no comment about the rights or wrongs of that, but we are involved now, so we have to recognise the implications of our involvement.
Mr Holloway
I am sure that the hon. and learned Lady’s constituents would like to know what percentage of the populations of Syria, Afghanistan, Iraq and Libya she thinks should come to live in this country if they want to do so.
Joanna Cherry
The position of the Scottish Government has been clear. We will take a fair share of a proportionate number coming to the United Kingdom. Indeed, some Syrian asylum seekers and vulnerable refugees have already been resettled in my constituency of Edinburgh South West.
Joanna Cherry
I am not at liberty to reveal the precise figure. It is not a large number, because the United Kingdom Government do not permit us to take a large number, and it is a reserved matter, so our hands are tied. Our First Minister has made it clear that we are willing to take a fair and proportionate share. How that is done has to be decided at a higher level even than the UK, which is why European Union co-operation is so important.
I want to say something about the plight of women and child refugees, because earlier this month, about a week or so ago, UNICEF reported that for the first time since the refugee and migrant crisis in Europe started, there are more women and children on the move than adult males, and that children and women now make up nearly 60% of the refugees and migrants crossing the border from Greece to the former Yugoslav Republic of Macedonia. Children now account for 36%—that is more than a third—of those risking the treacherous sea crossing between Turkey and Greece. The figure of 330 having drowned in the past five months has often been mentioned on the Floor of the House. UNICEF has emphasised that children should be prioritised at every stop of the way. Particularly when they get to Europe, they need to be informed of their right to claim asylum and their right to family reunification.
It is important not to forget the terrible conditions from which many women and children are fleeing. It has been well documented that women in Iraq and Syria are the targets of brutal oppression and sexual attacks perpetrated by Daesh. Rape is considered useful by Daesh as it traumatises individuals and undermines their sense of autonomy, control and safety. Rape is always an issue in war, but it is a particular issue in these wars. The former UN assistant commissioner for the protection of refugees said last year that
“Syria is increasingly marked by rape and sexual violence employed as a weapon of war…destroying identity, dignity and the social fabrics of families and communities”.
Female and child survivors of such sexual crimes are often shunned by their own communities, which is all the more reason why they come to Europe seeking refuge. When those people come, it is essential that they are treated with dignity and respect and that their particular vulnerabilities are recognised.
Save the Children has called on the UK to take 3,000 of the unaccompanied child refugees in Europe, and there is a moral imperative for us to consider that carefully—I am aware that the Government are considering it at present. I appeal for recognition of the reality of the desperateness of the situation and of the vulnerability of so many of these refugees, particularly female and child refugees. There should be recognition of the reality of sexual violence perpetrated as a weapon of war, which many women and children are fleeing, and of our moral obligation as a wealthy first-world nation to take our fair share of the burden.
Jonathan Lord
I am grateful to the hon. and learned Lady for giving way. She is making an eloquent speech, but there is something that I do not quite understand. The thesis of my hon. Friend the Member for Gravesham (Mr Holloway) is that while hundreds of thousands have already come to Europe, if we offer a home to millions there will be an almost inexhaustible supply of further people who will then want to come, and that is surely unsustainable. I do not understand how she is really addressing my hon. Friend’s main thesis.
Joanna Cherry
I do not accept the main thesis of the hon. Member for Gravesham, which is why—
Joanna Cherry
I am coming at this from a different angle. These are not straightforward matters, but my point is that we cannot wash our hands of these people. It is not right for the United Kingdom to say that we will take nobody from Europe. We need to get together with our European partners and talk about how to address the complex issues that arise as a result of this massive refugee crisis—or massive migration, depending on the language that people wish to use. It is really tragic that the United Kingdom is abdicating its responsibility to lead at such talks and discussions when we look back at the United Kingdom’s proud history of taking in refugees at other times when countries washed their hands of them—I am thinking of the Kindertransport in particular.
I would be foolish to deny that there is a potential issue in considering how many people may come and the sustainability of that process, but at the moment there is space for the people who are here. There are some estimates that there are 20,000 unaccompanied children in Europe at the moment. Is it really this country’s position that we will not take any of them? We seem to be moving in the right direction on that issue, but it should not stop at unaccompanied children. Sure, there are strong young men who manage to make it as far as Calais, but there are also very vulnerable people. The point of my speech today is an appeal for a humanitarian response to the crisis rather than a purely utilitarian response.
Mrs Anne Main (St Albans) (Con)
Thank you, Mr Rosindell, for calling me to speak. It is a pleasure to serve under your chairmanship today.
This debate should focus on immigration and not necessarily on refugee status, because we are talking about people who wish to make a home in our country and not necessarily those who are fleeing persecution. I will therefore confine my remarks more to immigration than to refugees. I say to the hon. and learned Member for Edinburgh South West (Joanna Cherry) that I would not base my views simply on what turns up in my postbag. Many surveys carried out regularly by reputable companies have shown that migration and population control is an important concern of the British public.
Mrs Main
No, I will not. The hon. and learned Lady had 10 minutes, and there are many people wishing to speak.
We should be talking about immigration, which includes some people with refugee status but also a large number of people who come to this country either because of our membership of the EU or because they are coming here as economic migrants. My hon. Friend the Member for Gravesham (Mr Holloway) made a powerful and well informed set of comments, based on having been in the camps, not just on people writing to him in his postbag.
If this issue was not such a concern to the British public, I do not believe that even now our Prime Minister would be trying to thrash out some deal that allays the fears of the British public about our loss of control over immigration into this country as a result of our membership of the EU.
It is telling that Mr Manuel Barroso said last night in an interview that what we are trying to achieve is a form of control on immigration through benefits packages, and that his view is that that will make no difference whatsoever. I share that view, because I do not believe that people necessarily come here because they have been lured by benefits. I believe that many people come here because they wish to work. They wish to take advantage of the opportunities that this country offers and of a better economic future for themselves and their family, and there is better healthcare here, and indeed better package as a whole. Whether we can afford for a large number of people to come into this country—a number that the British public would like to see reduced—is a different debate, but I do not believe that the benefits package that my right hon. Friend the Prime Minister might achieve by 18 February, however well secured, will make a jot of difference to immigration. Indeed, when my right hon. Friend the Minister for Immigration responds to this debate, I would like to hear whether he thinks such a package will make a jot of difference.
It is interesting that England—not the UK—is the second most crowded country in the European Union, if we exclude the island state of Malta, and the ninth most crowded country in the world when the city and island states are excluded. That contributes to the British public’s perception of whether, and how much, immigration into the UK is a good or bad thing.
I speak as someone with a highly desirable constituency that is surrounded by green-belt land, although it does have areas of multiple deprivation. I can assure the hon. and learned Member for Edinburgh South West that how many houses are built to accommodate newly formed households is a source of concern, and we should look it straight in the face. These are not separate issues, they are all interlinked.
Government household projections show that in England—not Scotland, obviously—we will need to build enough housing to accommodate the additional 273,000 households a year between 2012 and 2037, which is a total of five million homes. That is a vast number of houses and it means sacrifices of things such as the green belt, which many of us have to consider as constituency MPs. It also means that there are huge pressures on jobs in certain areas, and it is no good whingeing about jobs not being available to British workers. I seem to remember Her Majesty’s Opposition saying, “British jobs for British workers”, and the reason they say such things is that they know the British public are concerned about these things.
Currently, there are 2.1—
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Karen Bradley
I thank my hon. Friend for her question. The “This is Abuse” campaign has been extremely successful, and I am very pleased that the Government announced, just before Christmas, that we are continuing with it. It is so important that young people understand what is appropriate, understand what is appropriate in relationships and understand what a normal loving relationship is, as opposed to an abusive one.
My hon. Friend will know that the new domestic abuse offence—the offence of coercive or controlling behaviour—was commenced on 29 December. The new offence had been called for for many years. It was a difficult thing to do, which is why the Government made sure that we got it right, but we now have the ability to prosecute and convict offenders who never commit physical violence against their victims, but have abused them for far too long.
Joanna Cherry (Edinburgh South West) (SNP)
I thank the Minister for her comments. I join her in condemning rape and violence in any form and, in particular, any attempt to blame the victims. I wholeheartedly agree with her that responsibility must always rest with the perpetrator.
We in the Scottish National party are pleased that the events have been cancelled. The anti-women agenda behind them is utterly and completely repugnant. In Scotland, our petition against the events, which were due to take place in Edinburgh and Glasgow, has attracted about 40,000 signatures. Members may be aware that SNP Members have signed an early-day motion condemning these sexist and hate-mongering meetings and the misogyny behind them.
In Scotland, Police Scotland has been working closely with anti-violence against women organisations. It put out a fairly strongly worded statement about the policing of the events that were to have taken place. It is obviously absolutely paramount, as I am sure the Minister would agree, that women should be able to go about their lawful business, day and night, in our cities and towns without being subjected to this sort of intimidation.
The Scottish Government and Police Scotland have worked hard on the investigation of sex crimes in Scotland. The Minister will be aware that a number of years ago —in 2008—the Scottish Crown Office and Procurator Fiscal Service set up a specialist national sexual crimes unit. I was very proud to be one of its founding prosecutors. Our conviction rates for rape and sexual violence have indeed increased, but we are still working very hard on that, as these are challenging crimes to prosecute.
I associate myself with the questions raised by the hon. Member for Stretford and Urmston (Kate Green), and I thank her for asking this important urgent question. SNP Members, too, want the Istanbul convention to be ratified as soon as possible, and I am sure the Minister will reassure me that she is continuing to liaise with the devolved Governments about that.
Will the Minister reassure me about one point raised by the Member for Stretford and Urmston? If the Home Secretary becomes aware of any plans this gentleman—I use the word loosely—may have to enter the United Kingdom, will she liaise with the Scottish Government, and indeed the other devolved Administrations, on any future events?
Karen Bradley
I thank the hon. and learned Lady for her comments. I assure her that I will copy her into my letter to the hon. Member for Stretford and Urmston (Kate Green). We want to take all the steps we possibly can, and I want to set out in depth the steps that the Government can take and what we will do.
The hon. and learned Lady mentioned the Istanbul convention. I assure her that we are liaising with the devolved Administrations to make sure that we ratify it as soon as possible. She talked about police forces. I want to pay tribute to Police Scotland, and to all police forces across the United Kingdom. It is worth making the point that such criminals do not recognise borders, and police forces need to work together to make sure that we tackle these crimes. Such crimes are not acceptable in the United Kingdom—and I mean the whole United Kingdom.
Immigration and Nationality (Fees) Order 2016
Joanna Cherry Excerpts(10 years ago)
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Joanna Cherry (Edinburgh South West) (SNP)
It is a pleasure to serve under your chairmanship, Ms Buck.
The Scottish National party opposes this order. We are concerned about the 25% increase across the board for family fees, and the huge hike in the administrative review fee from £80 to £400—a 500% increase. I am sure that the Minister will wish to emphasise, as he already has, that these are maximum ceilings and that lower indicative costs have been published for the coming year. But what guarantee do we have that they will not go to the maximum in the effort to make the system self-financing, which is the Government’s avowed aim? Committee members will no doubt have had an opportunity to look through the briefing from the Immigration Law Practitioners Association, which makes some pertinent points. In particular, it highlights the fact that there is no correlation with the ability to pay, and that study and business-centred immigration is favoured over child and family issues. The Minister has said that he has given reasons, but we have grave concerns that the fee increase will be a disincentive to families, particularly those already here trying to register a child.
All Members have constituents coming to us with examples of the difficulties posed for them by the immigration system, and in November the ombudswoman published a report that was very critical of the Home Office. Let me give a couple of examples of constituents who have come to me about administrative reviews, which the ILPA has also highlighted. One constituent applied for a settlement visa for his wife, but the Home Office failed to communicate with Cambridge English Language Assessment about her certificate, which clearly stated that she had passed the English language assessment, and the application was refused. My constituent was forced to submit an administrative review and wait several months before the decision was overturned. It was a clear error on the Home Office’s part and resulted in his wasting money. I am sure the Minister will say that in certain circumstances the administrative fee is refunded, but as the ILPA briefing highlights, it is not refunded in all circumstances. For example, it says:
“The fee is refunded if the application is successful. It is not refunded where the refusal stands, but on some other ground, the original decision having indeed been found to have been flawed”.
I feel that that is against the principles of natural justice.
There is also the issue that regardless of the expectation that the fee may be refunded, people still have to stump up at the outset. There is a huge difference between £80 and £400, and that may be a disincentive to go for administrative review. During the passage of the Immigration Act 2014, the Government sought to reassure us that review would be cheaper than bringing an appeal, but these proposed maximums suggest that they have abandoned that idea. We should also remember that the increases must be seen in the context of increased thresholds for spousal visas, the removal of appeal rights and the removal of legal aid.
I want to speak briefly about another constituency example. A gentleman and his wife came to see me. They are both entrepreneurs and have invested considerably in the Scottish and, indeed, the UK economy and employed many UK citizens. Their application for a tier 1 entrepreneurship visa was rejected on grounds that were purely due to a Home Office mistake—a typographical error which meant that it searched for and investigated the wrong company in relation to the evidence of investment that had been produced. My constituent had stumped up a total of £7,200 up front to get the application in. I hope, because I believe in the principles of natural justice even within the Home Office, that an administrative review will be granted. My constituent’s business success means that he is in the fortunate position of being able to stump up the fee, but that does not detract from the fact that people are already expected to lay out large sums, and now considerable increases are proposed.
I know that the Government have said that one reason for the increases is to fund the costs of the system and make it self-financing. My hon. Friend the Member for Glasgow North East will talk more generally about the benefits of immigration for the UK and why we should question whether the system needs to be completely self-financing, but I make the point that the costs of the system would be substantially reduced if the Home Office addressed its considerable inefficiencies.
The report published on 10 November last year showed:
“Poor handling of immigration-related complaints is a key reason why the Parliamentary and Health Service Ombudsman upholds almost seven in 10 complaints about the Home Office…The top reason for the complaints were delays, which left many people separated from their loved ones, denied access to education or forced into the informal economy where they can face abuse. Poor decision making was the second issue highlighted in the report, cited in more than one in four upheld complaints about the Home Office.”
I ask the Government, why should families who want to come and live in this union of countries and contribute to our economies have to pay for the Home Office’s inefficiencies? What is the Home Office doing to address those inefficiencies, rather than putting the costs on to the applicants?
Serious and Organised Crime: Prüm Convention
Joanna Cherry Excerpts(10 years, 2 months ago)
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Joanna Cherry (Edinburgh South West) (SNP)
I thank the Home Secretary for her statement today and for the courtesy of keeping me and the Scottish Government informed of her plans in advance of today’s motion. I agree with the shadow Home Secretary that the Home Secretary made a convincing and powerful case for participating in the Prüm decisions. It seems clear that the United Kingdom’s participation in those decisions will give police forces across the UK accelerated access to millions of fingerprints, DNA profiles and car registration records held across Europe. Such police co-operation across Europe can only be a good thing, provided that there are inbuilt safeguards respecting civil liberties and adherence to the highest scientific standards.
I welcome the UK Government’s engagement with both the Scottish Government and Police Scotland in developing the business and implementation case. I and my colleagues at Holyrood are encouraged by the progress to date. On the basis that the necessary civil liberties safeguards and high scientific standards will be built into the legislation and that there is proper and full involvement of the Scottish Government, the Scottish National party will support the motion.
I thank the Home Secretary for confirming clearly that the Scottish Government, the Scottish Police Authority and Police Scotland will be included in the membership of the group to have oversight of Prüm. I thank her also for confirming that the UK Government will continue to work closely with the Scottish Government to ensure that the views and concerns of the people of Scotland are given due consideration in the implementation of these decisions.
Clear benefits of Prüm for Scottish policing have already been shown. The Home Office pilot exercise which was used to inform the business case has already produced two hits for serious historical sexual crimes in Scotland, and these hits are currently being assessed and investigated. Prüm clearly offers advantages to Police Scotland over the current system in terms of both the speed of response and the ability to identify perpetrators more quickly and bring them to justice sooner. Under the current system, as we heard, all international inquiries have to be routed through Interpol. Even in a very serious case, it can take several days for a response to be received. For less serious crime requests, as we heard, it can take many days and even weeks or months for responses to be received.
However, under Prüm, DNA and fingerprint data will be uploaded to the Prüm database from the relevant national databases. These data can be automatically searched, with any hits being notified immediately in the form of anonymised data in the first part of the two-stage process that the Home Secretary explained. Further data quality checks can then be carried out by member states, and on completion full data exchange can take place. This will be much quicker under Prüm than under the current system. The same applies to vehicle registration checks—an EU-wide vehicle registration check could be completed instantly under Prüm, compared with the several days that that takes at present.
On oversight, it was originally proposed by the Home Office that the Information Commissioner and the Biometrics Commissioner would be responsible for auditing UK compliance with Prüm. This was problematic for Scotland because, although they have a UK-wide role, both these officials have a limited remit in Scotland. For example, the Biometrics Commissioner’s role is to keep under review the retention and use by the police of DNA samples, profiles and fingerprints, but their functions in the main do not extend to Scotland. Collection of DNA profiles and samples in Scottish criminal cases does not fall within the Biometrics Commissioner’s remit because these issues are wholly devolved as they form part of Scottish criminal procedure.
Against that background, I am very grateful to the Home Secretary for confirming that the oversight group that is to be set up will include members from the Scottish Government, the Scottish Police Authority and Police Scotland, as this will provide a vehicle that can be used to feed in any views and concerns about compliance in Scotland. As I said, Prüm is a mixture of reserved and devolved matters, and that is why discussions are ongoing between officials of the Scottish and UK Governments to establish what, if any, legislation will need to be laid before the Scottish Parliament. Once again, I thank the Home Secretary for her continued co-operation with the Scottish Government in this regard.
Turning to civil liberties and safeguards, SNP Members were pleased to read in the business and implementation case that the Government recognised that there were significant civil liberties concerns about the operation of Prüm. I am pleased that they have taken on board some of the key objections put forward by civil liberties groups such as Justice, Liberty and Big Brother Watch. I note that the Home Secretary said that she renews her commitment to addressing civil liberties issues in relation to Prüm.
It is crucial that a correct balance is struck between preventing crime, protecting national security and protecting individual civil liberties, particularly the right to privacy. The Home Office has proposed a number of safeguards that we are pleased to support. In particular, we are happy with the suggestion that any personal data that the UK sends to another member state must not be stored permanently on its systems or databases, and cannot be stored for longer than would be legal in the country sending it. We are also pleased that there will be oversight of, and periodic checks on, the lawfulness of the supply of data and compliance with Prüm.
I understand that if a foreign member state searches for DNA or fingerprints and that search is matched with a UK citizen aged under 18, their personal data can be accessed only if mutual legal assistance channels are used, and that the UK will not share data on those under 18 through Prüm. I also understand that there is an appreciation that if the crime for which someone is matched is very minor, the UK can refuse to send personal data.
Then there are the higher scientific standards in relation to DNA profiles to which the Home Secretary alluded, whereby rather than the minimum requirement of Prüm for at least six full designated loci, the UK Government will require that personal data will not be supplied unless the DNA match is at 10 or more loci. As she said, that means that the chances of a hit being wrong are less than one in a billion, which under Scottish criminal procedure would put the matter pretty much beyond reasonable doubt.
I welcome the undertaking that the United Kingdom will ensure that only those who have been convicted of a crime can be searched in the DNA or fingerprint databases. I applaud this as being in line with what has been standard practice in Scotland for some years. I appreciate that the coalition Government also embarked on this route in recent years.
As I said, these safeguards have been welcomed by civil liberties groups, but some, particularly Big Brother Watch, which the right hon. Member for Orkney and Shetland (Mr Carmichael) mentioned, still have concerns about certain aspects of Prüm. They have raised a particular concern about the vehicle registration database, which holds the personal data of all drivers, the majority of whom are not, of course, criminals. Safeguards are to be built into the system with regard to access to DNA and fingerprint data to protect innocent people’s data, so I wonder whether consideration might be given to whether, at least to some extent, such safeguards should be built into the recovery of vehicle registration data. The Home Secretary said that innocent Britons will have nothing to fear, and perhaps that ought to be borne in mind in this respect.
Big Brother Watch raised similar concerns in relation to Eurodac—the EU-wide database of asylum seekers’ and illegal migrants’ fingerprints. The persons whose fingerprints are on this database are not necessarily criminals, so I wonder whether the Home Secretary agrees that it is appropriate that we look at putting in place safeguards to ensure that it is accessed only in the most serious cases.
On the European arrest warrant, I thank the Home Secretary for addressing a concern that I had, and that was raised by Big Brother Watch, about whether the match of a DNA sample, a fingerprint or a vehicle number plate would be enough to request the extradition of a British citizen, or whether further evidence would be required. I was pleased to hear her confirm so clearly that further corroborative evidence would be required before a European arrest warrant could be issued or implemented.
In conclusion, unlike others in this House—we have already heard from them today—the Scottish National party does not fear the jurisdiction of the Court of Justice of the European Union. Unlike those who have tabled amendment (a), we believe that, far from threatening the civil liberties of British citizens, the Court of Justice will ensure that they are upheld, having regard to the charter of fundamental rights. It is, of course, open to this Parliament to set higher standards in relation to human rights and civil liberties, if it wished to do so.