Oral Answers to Questions

Suella Braverman Excerpts

Monday 11th April 2016 Commons Chamber

[Mike Penning]

What we intend to do, with the help of the Chancellor, is to make sure that the Metropolitan police has got the funding that it asked for, not to cut funding by 10%, as the Labour party requested. Neighbourhood policing is an operational matter for the commissioner and the Mayor, but I repeat what I said earlier: looking at the statistics, we can see that if we want more police on the beat, we should vote Conservative.

[Suella Fernandes (Fareham) (Con)]

As part of special branch, Hampshire marine unit provides vital crime prevention along our coastal borders and within the marine environment of the Solent and the Isle of Wight, through operations such as Project Kraken. Will my right hon. Friend confirm that that vital crime prevention service is protected under current reforms?

[Mrs May]

My hon. Friend raises an important point and describes the variety of tasks that our police forces carry out, and the variety of skills and operational capabilities that they need. I am very conscious of the marine capability requirements in Hampshire. It is, of course, an operational matter for the police to determine how they spend their budget and what they use it for. Crucially, my right hon. Friend the Chancellor has ensured that we can protect police budgets, when precept is taken into account, over the next four years.

Investigatory Powers Bill (First sitting)

Suella Braverman Excerpts

Thursday 24th March 2016 Public Bill Committees

[Byron Davies (Gower) (Con)]

I was a member of some of the agencies that will attend today.

[Suella Fernandes (Fareham) (Con)]

I was a Treasury counsel, representing Government Departments.

--- Later in debate ---

[Victoria Atkins]

Q By way of conclusion, you gave evidence to the Joint Committee scrutinising the draft Bill in November 2015 and at that time you said it gave effect to 90% or more of the recommendations in your report entitled “A Question of Trust”. Now that the Government have responded to the Joint Committee’s report and made further amendments, how much closer is the Bill to your report’s recommendations?

David Anderson: If I may say so, I thought that it was an excellent report and I was very pleased to see that the Government had given effect to the great majority of those recommendations.

[Suella Fernandes]

Q I have two questions. On the double lock and the judicial review test, concerns were expressed by witnesses to the Joint Committee about two issues. The first is the access to evidence by the judges and by the Ministers or the Home Secretary in the process of considering warrants. What would be the access to evidence by both parties involved in the double lock? Would it be the same or different?

David Anderson: I would certainly assume that the judges would have access to all the evidence that the Home Secretary or the Secretary of State had access to. I believe I have actually had a private assurance that that would be the case. I am afraid I have not checked to see whether that is in the code of practice, but plainly it ought to be, because this is not a rubber-stamp and nor is it simply a test of rationality or process. If it needs to, it should involve a proper look into these issues of necessity and proportionality. I was delighted to note that the Foreign Secretary said as much when he wound up the debate on Second Reading last week.

[Suella Fernandes]

You have pre-empted my second question, which is about the concerns that various witnesses have raised about the level of scrutiny involved in the judicial review test. Are we looking at a Wednesbury level of scrutiny?

[The Chair]

Order. I am afraid we have reached the end of the time allotted for the Committee to ask questions. On behalf of the Committee, thank you very much for your time and for giving evidence today.

Examination of witnesses

Eric King and Sara Ogilvie gave evidence.

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[Simon Hoare]

Q You are right that there are a number of clubs in the golf bag of the law enforcement team and the agencies, but given that we live in an incredibly fast-moving, technological world, where international boundaries are not recognised and so on, would you agree that the more facilities that the agencies have available to them, the better—that is, the wider that the net can be cast, the more ne’er-do-wells one is going to identify and hopefully apprehend?

Eric King: Respectfully, as you acknowledge, there are different ways to solve a problem. Casting a very wide net is not always the right thing to do. IP resolution is certainly a very narrow technical issue that you need to resolve. Collecting all sorts of additional information in additional areas would not help resolve that narrow issue. I think you have to look at it on a case-by-case basis.

That is part of the reason why we need to scrutinise properly the operational cases for the variety of these powers, to understand which bits of them they help solve and which bits they do not. Certainly, intrusive powers need to be available to our law enforcement and agencies, but we need to understand which bits work and which bits do not.

[Suella Fernandes]

Q This is a question for Sara. In evidence to the Joint Committee, Shami Chakrabarti criticised the Bill on behalf of Liberty, saying that judges would not have the same access to evidence as Ministers in the warrant process. We have just heard evidence from the independent assessor of the terrorism legislation, David Anderson QC, that that is not the case. The Home Secretary has said on the record that that is not the case, and that they would have the same access. Do you withdraw that criticism of the legislation?

Sara Ogilvie: No. This is one of the areas where there has been a lot of discussion and to-ing and fro-ing. If the Home Secretary wishes to satisfy our concerns, those are the kinds of provision that should be dealt with on the face of the legislation. It seems to us that judicial review remains an inherently limited jurisdiction. That is quite a legal term to say that there are only so many things that it can do. We think that a much broader power needs to be granted to the judicial commissioners in order to satisfy public concerns that the powers be used appropriately and to match human rights standards. This is an area on which the Home Secretary has sought to give lots of reassurance, in which case I think it would be best if she put that reassurance in legislation.

[Suella Fernandes]

Q Evidence was given to the Joint Committee by Sir Stanley Burnton, the Interception of Communications Commissioner, and Lord Judge, the Chief Surveillance Commissioner. Both said that the double lock involves an intensive analysis including analyses of necessity and proportionality. It is not simply rubber-stamping. Again, do you maintain your disagreement with those senior judges?

Sara Ogilvie: I respect and agree with the fact that an extent of necessity and proportionality analysis will be done, but there is still very limited capacity for judges and judicial commissioners to undertake this exercise. We have seen, and judicial review case law tells us, what level of scrutiny can be applied to different kinds of decision, and we know that where a decision does not involve a restriction on the physical liberty of an individual, a lesser scale of judicial review scrutiny will be applied.

We also know that where cases involve national security, judges must apply a lesser level of review. Although I recognise that there is a difference of views, I think it needs to be much clearer in the legislation. Judicial review should be avoided as a standard in this circumstance.

[Christian Matheson]

Q I will ask only one question. Mr King, you talked about the astonishing amount and huge volumes of data that are collected. Can you both comment on the statement that the sheer volume of information means that there is less of a threat to personal privacy, simply because individuals’ personal data are almost swamped within the mass of data collected?

Eric King: It is an interesting idea, isn’t it, that the more widespread the intrusion, the less potentially bad it is. That is not a view that I can understand myself, particularly now. Computer analytics of such material is going to increase. It is going to get better and faster. The more data being collected, the more intrusion will be applied year on year as GCHQ engineers find cheaper, better and faster ways to process it. Perhaps five years ago, swamping agencies with material might have resulted in people passing through, but every day, that becomes less likely and less real.

We have seen in the last five years a 7,000% increase inside GCHQ of the analytical capability on material. That means that 7,000% more material is being touched, analysed and scrutinised by those agencies. Perhaps it was an idea that could be comprehended 20 years ago, when it involved physical piles of paper that no one ever looked at, but now it is all being automated, and I am not sure that the notion stands up today.

Sara Ogilvie: I clearly agree with what Eric has said. The only thing I would add is that I ask you to consider the fact that we are not just concerned about the state having this information. All this information that is stored somewhere can be accessed by other individuals for nefarious purposes. We have seen the TalkTalk hacks this year. We have seen the VTech hacks. There are real and legitimate concerns about the way this vast amount of personal information can be used, not just by the state but by other people who really do wish to do us harm.

Investigatory Powers Bill (Second sitting)

Suella Braverman Excerpts

Thursday 24th March 2016 Public Bill Committees

[Joanna Cherry]

Q You will not get passwords from an ICR?

Alan Wardle: No.

[Suella Fernandes (Fareham) (Con)]

Q There has been a description of Tor as a facility that allows digital abuse of anonymous online activism. It is linked to encrypted information. I want you to say a bit about what effect encryption has on some of the work that you are involved with?

Alan Wardle: A lot of the activity that we take for granted online—shopping, banking and all the rest of it—could not be done without encryption, but of course, as with all these tools, encryption can be used for bad purposes by bad people. Similarly, with services like Tor and Freenet—the dark web—in the cases that we are concerned with, you get your most highly committed and dangerous offenders, quite often, particularly sharing very explicit images or videos of children being abused. Those services enable them to hide there. The police do the best they can, but, again, for a lot of that they will be dependent on traditional undercover techniques.

I think there is a question that is—I say this respectfully —beyond this Committee’s remit and beyond many of our remits. The direction of travel generally is that we are seeing greater moves to encrypt data as a matter of course, with things like Google Chrome browsers and so on. With browsers such as that, internet service providers cannot put in place the kind of protections they have, so they do not know what is going on there. That is a direction of travel and something that is worrying. It is clearly a global issue, but the police not being able to track what is going on due to increasing levels of encryption is a worry.

[Victoria Atkins (Louth and Horncastle) (Con)]

Q Just to pick up on the point made by the hon. and learned Member for Edinburgh South West about the missing child, is it right that, sadly, the victims of sex grooming rings do not surround themselves with friends and parents, because one of the tools that the groomers use is to isolate the victims, so that they have no one they can turn to in their hour of need?

Alan Wardle: That can be true. They can even turn the child against their family and friends as well.

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[The Solicitor General]

Q But you appreciate the problem that we have in getting this right.

Lord Judge: I do, but that is what Parliament is for. We have to decide what the law should be. I myself would like the law on this issue to be absolutely unequivocal, whatever Parliament or the House of Commons ultimately want.

Sir Stanley Burnton: We wonder what the function of clause 196(6) is. It is either telling a judge the obvious or it is a big stick to wave at the judge, to say, “You have to approve this because if you don’t, you’ll be jeopardising the success of an intelligence operation.”

[Suella Fernandes]

Q Building on the point made by the Solicitor General, clause 21 sets out the “necessary” and “proportionate” tests. We have heard a lot about those words. What questions do you ask when you are assessing proportionality? What is that analysis?

Sir Stanley Burnton: You are looking at the effect of the measure in question as against alternatives and as against the mischief that is aimed at—are we talking about saving life, or it just a matter of money? If it is money, is it a lot of money? Is it pensioners’ money or the Government’s? You weigh one up against the other, and in the end, it is a matter of assessment—looking at one and looking at the other.

[Suella Fernandes]

Q So reading that meaning of proportionality, which we all agree on, with the factors listed in clause 18, is it not clear to a decision maker what factors are relevant and the level of scrutiny to be applied?

Sir Stanley Burnton: You have had my answer already. I am content with the Bill as is, but Lord Judge takes a different view.

Lord Judge: The answer surely is that those criteria are applied by the Secretary of State. The commissioner will apply the same criteria, but are you asking him or her to be a co-decision maker or a supervisor of the Minister? If a supervisor, then you have to define what his or her role should be.

[The Chair]

Thank you very much, panel. Have a happy Easter and enjoy your weekend reading.

Examination of Witnesses

Lord Reid and Charles Clarke gave evidence.

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[Matt Warman]

Q You talked about updating the legislation and the importance of that. Do you see an internet connection record or something equivalent to it as a key part of updating this legislation for the world we live in now?

Charles Clarke: I do personally, yes.

Lord Reid: I do as well. Not to test the Committee, but two years after 7/7, on 6 August 2006, there was a plot to bring down seven airliners. There would have been 2,500 victims, and intercept was absolutely essential in protecting those lives—absolutely essential—with both the internet and telephone communications.

[Suella Fernandes]

Q It has been raised before, but some witnesses have said that warrantry should be solely within the Executive function—

Lord Reid: What, sorry?

[Suella Fernandes]

Warrantry should be retained by the Executive. Other witnesses have said that it should be a judicial function. The double lock is a middle way. Where do you both sit on that spectrum, ideally?

Charles Clarke: Personally, I am in favour of the Executive responsibility. I would prefer to have that. I think the more you draw the judiciary directly into the operation of the law, as in continental systems, the more you threaten the ability of the judiciary to play its characteristic role. I understand why proposals are being made to have a double system, and I am not against it, but it is against my instincts, actually. It is a path that has been ill thought through. There is a whole section of lobbies in this country who believe, essentially, that the lawyers are better people, in whom you can have more confidence than in the politicians. I reject that assessment.

Lord Reid: I agree entirely with Charles on that. I think that there are a couple of other reasons as well. First, this judgment ultimately is not just the strict codification of a law, although it involves that; it is about political judgment—I therefore think that there is a second reason. The third reason is quite simple. If a wrong decision is made and 2,500 lives are lost, for instance, it will not be the judges who are held accountable—I do not just mean by Parliament, but by the family, the public, the community—it will be the Minister. Therefore, for those three reasons, I personally am in favour of this being the decision of the Executive. For the reasons that I explained, I am willing to accept that the Home Secretary has had to bow to other pressures and to put in judicial oversight, but only as long as that is about oversight and judicial process, and not about decision making. If it is about decision making, I think it is a recipe for ineffective operational capability.

[The Chair]

I thank our two witnesses for tailoring their responses in a way that allowed all colleagues to get in, including Back-Bench colleagues. Absolutely fascinating. On behalf of the Committee, I wish you a very happy Easter. Thank you so much for being so generous with your time.

Investigatory Powers Bill

Suella Braverman Excerpts

Tuesday 15th March 2016 Commons Chamber

[Andy Burnham]

I disagree entirely. As I said, we will not oppose the Bill because we will be responsible. I have recognised that the country needs a new law. I have also said, as I will come on to explain, that the Bill is not yet worthy of support. There are significant weaknesses in the Bill. I am sorry, but I am not prepared to go through the Lobby tonight and give the hon. Gentleman and his Government a blank cheque. I want to hold the Government to account. I want to see changes in the Bill to strengthen the Bill. When they listen, they will earn our support. That is entirely appropriate and responsible for an Opposition party to do.

The higher the consensus we can establish behind the Bill, the more we will create the right climate in the country for its introduction. As the Home Secretary said, it could create a template to be copied around the world, advancing the cause of human rights in the 21st century. The prize is great and that is why I am asking those on the Opposition Benches to work constructively towards it.

I repeat today that I do not think our mission is helped by misrepresentation. In my view, it is lazy to label the Bill as a snoopers charter or a plan for mass surveillance. In fact, it is worse than lazy: it is insulting to people who work in the police and in the security services. It implies that they choose to do the jobs they do because they are busybodies who like to spy on the public, rather than serve the public. I do not accept that characterisation of those people. It is unfair and it diminishes the difficult work they do to keep us safe.

[Suella Fernandes (Fareham) (Con)]

Does the right hon. Gentleman agree that the three independent reviewers all agree that our services categorically do not carry out mass surveillance and work within the boundaries of legislation?

[Andy Burnham]

I agree with the hon. Lady. The idea that they have the time to do that is fanciful. They are going straight to the people they need to be concerned about on our behalf, and that is why I reject the characterisation that is often placed on this proposed legislation.

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[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.

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[Suella Fernandes (Fareham) (Con)]

I am not sure what the collective noun is for lawyers.

[Simon Hoare]

A pain.

--- Later in debate ---

[Suella Fernandes]

It may be a pain, a chorus, a dazzle or an appeal. Whatever it is, I rise to join that group and its collective voice in favour of the Bill.

Although the Bill’s opponents brand it a snoopers charter and criticise the lack of safeguards, I disagree with them. Like several hon. Members in the Chamber today, I had the privilege of sitting on the Joint Committee, and I heard at first hand the evidence of professionals on the front line. I am convinced that they exercise their powers judiciously and carefully, and I have faith that they will apply ethical standards when it comes to employing those powers. As the shadow Home Secretary said, GCHQ has neither the resources for nor the interest in carrying out mass surveillance of innocent people.

On safeguards, warranting has traditionally been the sole concern of the Executive. To echo the sentiments of my right hon. Friend the Member for North Shropshire (Mr Paterson), warranting is an inherently political process. When Ministers take a decision on granting a warrant, they take into account issues of national security, diplomatic relationships and the wider context. Frankly, such factors would not be relevant to a narrow legal and judicial analysis.

The Bill incorporates judicial review as the test to which warrants are subject. As my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) set out, judicial review incorporates a test of proportionality. That test—I speak with 10 years’ experience as a barrister specialising in judicial review in administrative law—involves four stages: first, looking at the objective in mind; secondly, assessing whether the means are directly connected to the objective; thirdly, asking whether an alternative is available; and lastly, carefully balancing intrusion against privacy. The choice is clear: do we trust our skilled professionals, or do we further disable them and let the terrorists and those who seek to destroy our society wreak havoc in this world?

Child Refugees: Calais

Suella Braverman Excerpts

Monday 29th February 2016 Commons Chamber

[James Brokenshire]

I would say to anyone in that situation that they should claim asylum in France, which will ensure that there is a direct connection and that we can make the system work. I stress that the fact that different messages are being given does not help the situation. In respect of the whole issue of the clearance of the camps, I understand that the court specifically ruled that it should go ahead with the exception of places of worship and schools. The French Government should therefore adopt that approach in the actions they are taking.

[Suella Fernandes (Fareham) (Con)]

Before I entered this place, I worked as counsel on hundreds of asylum and trafficking cases. A core principle of the Dublin regulations is that the first country of entry should take responsibility for the claimant, which imports fairness and equity into the system. Will my right hon. Friend reassure the House of his commitment to that principle, and confirm that to discard it without legal basis would be undemocratic and illegitimate?

[James Brokenshire]

I agree with my hon. Friend about the benefits and the strength of the Dublin arrangements. We believe that they should be upheld, not undermined. They include the core principle that those who make a claim should do so in the first safe country in which they arrive. Equally, the principle of family reunification for close family members operates under Dublin III, and the Government stand by that principle.

Police Funding, Crime and Community Safety

Suella Braverman Excerpts

Wednesday 24th February 2016 Commons Chamber

[Suella Fernandes (Fareham) (Con)]

I have listened intently to the Labour party’s propositions and arguments, and I am stunned and, frankly, disappointed by the one-sided and misleading portrayal of this issue. The shadow Home Secretary talked about cuts to services, cuts to funding and cuts to the police, but he totally ignored the remarkable cut in crime that this country has seen since 2010. Crime has fallen by about 25% since 2010. He challenged the crime survey statistics, but all the independent reports and all the facts show the same decline in crime, with a fall of more than 25%. The statistics from the Office for National Statistics are clear that the crime rate is now 64% below its peak in 1995.

Those figures are backed up in the regions. For example, in Hampshire, my county, we have seen an 11% drop in crime over the past year alone, making a fall of more than 30% since 2010. A recent study from Cardiff University showed a 10% fall in the number of people seeking treatment for violent crime injuries in hospital accident and emergency departments, which again reinforces the downward trend in violent crime.

The shadow Home Secretary says that those statistics are overshadowed by the rise in cybercrime, so let us look at what the Government are doing to tackle cybercrime. I sat on the Joint Committee on the Draft Investigatory Powers Bill, which had 22 public evidence sessions and received thousands of pages of written evidence. We visited and met professionals on the frontline. The Bill will provide vital powers and necessary transparency and accountability to our online forces. Having talked to the professionals and listened to what they want, I can say that they want more powers to intercept online communications, interfere with equipment and track internet connection records.

Last week we heard about paedophiles using secret Facebook groups to exchange imagery online and terrorists using WhatsApp, text and email to carry out their crimes. Although the technology is welcome, we need to ensure that encryption is not used against our law enforcement services, which are struggling to keep up with the criminals. The Bill will provide vital powers to ensure that they can tackle cybercrime. To echo the sentiments of my hon. Friend the Member for North West Hampshire (Kit Malthouse), it focuses on methodology and technique rather than just throwing cash at the problem. That is what the professionals on the frontline want and what they are asking for, and that is what this Government are delivering.

draft Regulation of Investigatory Powers (Interception of Communications: code of practice) order 2015 Draft Equipment Interference (Code of Practice) Order 2015

Suella Braverman Excerpts

Thursday 7th January 2016 General Committees

[Keir Starmer]

I am grateful for that.

Regarding the remaining tricky or more complicated areas, I shall focus on legal professional privilege and the protection of communications involving confidential journalistic material and other confidential information. Before I do so, though, I highlight the point made by a number of respondents to the consultation on the equipment interference code. The Government’s response to the consultation summarises their point as saying that

“a code of practice was not a suitable vehicle for setting out the power to conduct equipment interference and that it should be provided for in primary legislation. This would offer an opportunity to have an open and transparent debate about the use of equipment interference by the Security and Intelligence agencies.”

That is a point well made in the consultation, although the Government’s response is inevitably constrained by the legislation that is currently in place. Nevertheless, it emphasises the need for a real debate on this issue as the draft Investigatory Powers Bill goes through its various stages.

I will not take up time by reminding the Committee of the importance of legal professional privilege, but the need for reform and further guidance under the code is absolutely clear. In that respect, probably the only quarrel I have with the Minister is that I am not sure that the new codes are simply about the Government doing their job properly. They were necessary as a result of the ruling in the Investigatory Powers Tribunal, which declared in February last year that the previous approach was not in accordance with article 8 of the European convention on human rights. That position was rightly conceded by the Government, because in that case the IPT ruled that

“the regime for the interception/obtaining, analysis, use, disclosure and destruction of legally privileged material has contravened Article 8 ECHR and was accordingly unlawful.”

It was therefore necessary, for the period that the current regime remains intact, to have further guidance to bring the approach into accordance with the IPT.

I remind the Committee that the previous code simply said that caseworkers

“should be alert to any intercept material which may be subject to legal privilege.”

It did not go on to state what steps should be taken if legally privileged material was identified. There was a deficiency there that the new code is intended to deal with.

Although they do not ring-fence legally privileged material, the new codes do provide much more detailed guidance, which, again, is welcome, particularly in paragraphs 4.5 to 4.25 of the interception of communications draft code and chapter 3 of the equipment interference draft code. I highlight the fact that the latter provides that, prior to any warrant being granted where interception of privileged information is likely, there must be an assessment of how likely it is that such information will be intercepted. So, first, there must be an assessment before the event. Secondly, when the interception of legally privileged information is intended, the threshold, as the Minister said, is that there must be

“exceptional and compelling circumstances that make the authorisation necessary.”

Thirdly, the code makes it clear that the threshold will be met when there is an

“imminent threat of death or serious injury or serious threat to national security”

but it is anticipated that such situations will be rare. In addition, the code states that any communication between lawyer and client or any third party for the purpose of actual or contemplated litigation

“must be presumed to be privileged unless the contrary is established”.

Those are three or four aspects in which the guidance is much sharper and clearer. Time will tell—in the limited life of such codes—whether the regime is robust enough. Over the coming weeks and months, we will obviously keep a beady eye on how matters progress. To some extent, however, such matters will be considered in greater detail as the Bill proceeds.

My only point at this stage is that there is a question mark over whether the protection in relation to dissemination is strong enough under the code. The code simply states that privileged information cannot be disseminated unless a legal adviser has been consulted on the lawfulness of such action and that “all reasonable steps” must be taken to ensure that “as far as practicable” authorities involved in legal proceedings are prevented from seeing privileged information relating to those proceedings. Why does the code not expressly prevent dissemination where legal advice has been received as to its unlawfulness? I accept, however, that that question is probably equally well suited to the forthcoming debate on the Bill.

Moving on, it is noticeable that the protection for journalistic material and other confidential information is a lot weaker than the protection for legally privileged material. In his report, “A Question of Trust”, David Anderson, the Government’s reviewer, points out:

“The Draft Interception Code sets out similar provisions in respect of journalistic or other confidential material but the threshold for access is not as high as that in respect of legal privilege.”

It is obviously a matter of some concern that there are two different regimes for protected information. This matter was raised in the consultation, and I remind the Committee that the News Media Association took the view that the current regulatory framework

“poses a threat to journalism, journalists and their sources”.

The new provisions in the code of course have a chequered history. The National Union of Journalists, in a joint statement with the Bar Council, said that

“access to professional data should be protected in law and should be subject to independent, judicial oversight. Using codes of practice—such as the draft code under RIPA—undermines the rule of law.”

To some extent, their plea is for a change in the law, which is hopefully now forthcoming. The general secretary of the NUJ said:

“The proposals contained in the existing RIPA code of practice simply do not offer the protection to journalists and to sources, and are in fact dangerously inadequate. New legislation is urgently needed—it is vital that judicial oversight is introduced to force police officers and other snoopers to apply to judges in a transparent process before surveillance powers against media and legal professionals can be considered.”

Finally, the Press Gazette and the Society of Editors said that the draft code provides

“wholly inadequate protection for journalists’ sources”

and demanded that communication between journalists and public officials be treated the same as privileged information.

I recognise that the target of some of those comments was new legislation rather than a different code and that the code can only go so far, but not to have aligned in the interim the protection for journalistic material and other confidential material with the protection now given in the code to legally privileged material is a missed opportunity.

[Suella Fernandes (Fareham) (Con)]

How would the hon. and learned Gentleman define “journalist” in this context given the plethora of people out there, from the occasional blogger to the editor of a mainstream broadsheet newspaper, who would self-describe as journalists?

[Keir Starmer]

That is a good question, and a difficult one to answer. I confronted it when I was Director of Public Prosecutions, because I had to issue guidance on how we would approach the prosecution of journalists. We took a broad view, on the basis that if the protection of journalists’ sources is to have any meaning, one cannot distinguish between different forms of journalism. It is simply not good enough to say that because the definition is difficult, the protection should not be afforded to any.

I acknowledge that it is difficult to define journalism. I gave it my best shot in the guidance that I published and took a broad approach, but I resist the notion that because it is difficult to delineate clearly the limits of what a journalist is, the long-standing and hard-won protection for journalists’ sources and other confidential information must yield to that difficulty. That is a dangerous path for us to go down. It is obvious and inevitable that the regime in this legislation will not involve the sort of judicial oversight that comes with the Police and Criminal Evidence Act 1984, which is a live issue in the public domain among journalists and others. As I said, I think that it is a missed opportunity, albeit for a relatively short period, not to have aligned the protections in the different sorts of protected category in the codes to give better protection to journalists, their sources and the confidential material with which they deal routinely.

There is, of course, much to focus on in the upcoming debate on the draft Investigatory Powers Bill. We welcome the codes and the tone and manner in which they have been put before the Committee. I have outlined the concerns, but we support the codes.

Counter-terrorism

Suella Braverman Excerpts

Tuesday 5th January 2016 Commons Chamber

[Mrs May]

I am not protecting any interests.

[Suella Fernandes (Fareham) (Con)]

Daesh represents such a serious threat largely because of its widespread use of technology and social media to radicalise people in their bedrooms, on their smartphones, covertly but sadly compellingly. Does my right hon. Friend agree that our security services and police need special powers to collect internet connection records and bulk communication data to protect the nation’s security and stay ahead of the terrorists in this complex environment?

[Mrs May]

My hon. Friend puts her point extremely well and she is absolutely right. It is important that we are able to access these internet connection records and to have the powers that we are hoping to introduce in the Investigatory Powers Bill. It is entirely right that the Government should continually look to see what further measures we need to take to enhance the powers of the police and security and intelligence agencies to keep us safe, and that is exactly what we are doing.

Serious and Organised Crime: Prüm Convention

Suella Braverman Excerpts

Tuesday 8th December 2015 Commons Chamber

[Sir William Cash]

I think that the Home Secretary used the expression “pilot scheme”. She surely concedes that it was a small scale pilot scheme. That is the basis on which I question the extent to which the evidence is sufficiently broad-based to justify this extremely grave extension of powers to the European Court of Justice. The main risks highlighted by the Government are the remaining possibility of false positives, leading to the false incrimination of innocent individuals, cost, conferral of jurisdiction to the Court, and a high volume of requests, bearing in mind the fact that the UK has the largest criminal fingerprint and DNA databases.

[Suella Fernandes (Fareham) (Con)]

I appreciate my hon. Friend’s exploration of the issue, but I wish to pick up on the point he made to our right hon. Friend the Home Secretary about the small scale of the pilot. What does he say about the fact that our law enforcement service will have access to more than 5 million fingerprints and DNA profiles? In the pilot, the British police sent out more than 2,500 profiles. When it comes to scale, the evidence is compelling.

[Sir William Cash]

The scale has to be weighed against the extension into the realm of the European Court of Justice. That is the key issue. The European jurisdiction has been conceded by the Government, although they refused to do so before. In addition, this entire exercise represents the most massive U-turn in Government policy since 2013.

Draft Investigatory Powers Bill

Suella Braverman Excerpts

Wednesday 4th November 2015 Commons Chamber

[Mrs May]

Yes, that is important. The police have been very clear that they need these tools if they are going to be able to continue to do the job we want them to do in relation to serious and organised criminals and particularly in relation to paedophiles. On the first point my hon. Friend made, that is why I particularly welcome the comment made by the right hon. Member for Leigh (Andy Burnham): across this House we can send out a message today that this Bill is not about mass surveillance.

[Suella Fernandes (Fareham) (Con)]

I congratulate the Home Secretary and her team on introducing into what has been an incomprehensible regime much-needed transparency and coherence, informed deeply by three independent reports and, importantly, enabling our intelligence, security and law enforcement agencies to have the powers they need to deal with the unprecedented scale and character of the threat this country faces. On warranting, does my right hon. Friend agree that the judiciary are well placed to deal with their new involvement? As a barrister, I made urgent applications on the phone late at night on an emergency basis to senior judges, so they are experienced in these matters. Can my right hon. Friend confirm that the double lock strikes the right balance between public accountability and appropriate checks and balances?

[Mrs May]

I thank my hon. Friend, particularly for her reference to her own experience. Sometimes people have a vision of judges taking a very long time to do all this, but as she says, there are many occasions on which they have to react very quickly to requests, and they have to be available to do so. I expect that they will do that in these circumstances as well. I believe that this Bill will strike the right balance between public accountability and the independence of the judiciary, which will give the public that extra confidence.