Immigration and Social Security Co-ordination (EU Withdrawal) Bill (Third sitting)
Gavin Newlands Excerpts(5 years, 2 months ago)
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Maria Caulfield
Q
Bella Sankey: The proposal is for a universal time limit that would apply to all. We think it is an important matter of principle that no one should be detained under immigration powers unless their removal is genuinely imminent. Again, that is nothing more than a reflection of current Home Office policy and guidance. We do not see any need to detain any group for longer than that.
People with previous convictions have served criminal sentences if they received a custodial sentence for their conviction. There is no need for a further detention—an additional punishment—for that group. It is also worth mentioning that many of the trafficking survivors and victims of modern-day slavery who we see in the immigration detention estate have convictions because they have been coerced into criminality. We think it is a false distinction to make between people with convictions and those without, because it really does not speak to the wider circumstances. In many cases, it is people with convictions who are actually the most vulnerable—people who have experienced torture and extreme forms of trauma.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Q
Bella Sankey: I am afraid that I cannot speak to Harriet Harman’s amendment, because I believe that it has not been published. I can speak to the safeguards in our amendment, if that would assist.
Gavin Newlands
Q
Bella Sankey: I understand that it has been suggested that a detention time limit amendment could exclude people with convictions. I have explained many of the reasons why, in our view, that is not a sensible thing to do. There is an additional point that is highly relevant. An amendment that sought to exclude people who have served custodial sentences of a certain length—for example, at least 12 months—would be contrary to EU law, and so it would likely be found unlawful. I do not think that is a recommended course of action. As I have just indicated, there are severe drawbacks to excluding a category of people who often have the most acute vulnerabilities, including asylum seekers who have convictions for document offences, people who have convictions because of extreme destitution and so on.
As I referenced earlier, people who have received criminal convictions and custodial sentences serve time in prison. The explicit objective is to provide deterrence, punishment and rehabilitation. As you will know, our criminal justice system has been designed and equipped so that if people who have committed serious offences are released from prison, they are subject to a regime of licence, probation and initial management in the community in order to ensure public safety.
With our current system, people with convictions are often immediately sent straight to immigration detention after their custodial sentence finishes. They might spend their entire period of licence in detention, only to be released back into the community. It is important for the Committee to acknowledge that over half of people who are detained are ultimately released back into the community, which means that some people who have committed more serious offences are not given the proper support, supervision and monitoring that might be necessary to ensure public safety.
Immigration detention currently creates a kind of parallel system that essentially removes people from the criminal justice system and its safeguards.
Gavin Newlands
Does the rest of panel agree with the 28-day detention limit?
Ilona Pinter: We obviously work with children, who are generally not detained. For young people who are turning 18, we agree with that limit. I want to echo what Bella has said. It is a real concern, particularly for victims of modern slavery. The modern slavery review panel is currently looking at those issues, particularly the use of a statutory defence and non-prosecution principles. We continue to see lots of young people who end up in immigration detention, so we would very much support that.
Steve Valdez-Symonds: Amnesty strongly supports the introduction of a time limit. If anything, in our opinion, 28 days is a very long period of time. It is certainly a period of time that should be applied to all people facing removal from this country, whatever their past. We ought to remember that many of the people we are talking about, in respect of deportation following criminal offences, are people who have grown up in this country and, indeed, in some instances, were born in this country—people with rights to British citizenship that have been long overlooked and who should certainly not be facing deportation in the first place.
Adrian Berry: Briefly, it is a rule of law issue. Twenty-eight days should be the outside limit. There should be automatic bail hearings and judicial oversight. Both the Bar Council, representing barristers, and the Law Society treat this as a rule of law issue, and they support that amendment.
Jurga McCluskey: It sounds very sensible to me, so yes.
Bella Sankey: Can I add one more thing? I do not think I answered your question about parliamentary support. It is my understanding that there is widespread support among your colleagues for a universal time limit on immigration detention. Some of you may have seen a story in The Times newspaper today—11 Conservatives wrote to the Home Secretary on Tuesday to say that they support a time limit for all. It is also my understanding and my reading of the manifestos of the Opposition Front Benches that a time limit for all is supported. It is our understanding and our view that there is actually a great deal of consensus in Parliament for this.
Jack Brereton (Stoke-on-Trent South) (Con)
Q
Ilona Pinter: We are not so concerned about that. What we are concerned about is that those children, young people and families who are here are able to have access to the services and support that they need. One of the biggest issues that we deal with through our services is supporting families who have no recourse to public funds. That includes EEA-national families, because of the kinds of restrictions around those who are exercising treaty rights, but primarily families from non-EEA backgrounds. Often, those are families with a single parent—single mothers, primarily—of young children facing a lot of difficulties. The no recourse to public funds restrictions on their access to benefits pose great challenges to families being able to work—
Immigration and Social Security Co-ordination (EU Withdrawal) Bill (First sitting)
Gavin Newlands ExcerptsTuesday 12th February 2019
(5 years, 2 months ago)
Public Bill CommitteesRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 View all Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 February 2019 - (12 Feb 2019)
Alison McGovern
Q
Lord Green: You can do various calculations on that. I do not have them in my head. I think that so long as we live longer and healthier, there is perfectly good reason to raise the retirement age.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Q
Lord Green: No, I think that is completely irrelevant, frankly. I hope that this is a meeting in which I can speak to you clearly and simply. If I was making some public speech, I would use different words. This is not a public speech, I hope.
Gavin Newlands
Q
Lord Green: No, I don’t think they are.
Gavin Newlands
Q
Lord Green: The first thing is to restore the cuts that have been made, but I think they will probably need more than that, because they will have a new situation to deal with. But I am not an expert on the administration of the Home Office.
Stuart C. McDonald
Q
Lord Green: There are bound to be problems. You are talking about literally millions of people, most of whom have good English, but not all. There is certainly a possibility—a probability—that by the time the deadline comes, there will be people who have not registered. I listened to what the previous witness said about that.
We will need to be careful that we do not accidentally find that a large number of people have rights that they are not aware of—have rights through their parents that they are not aware of, as one of the Committee members put it. There is a risk there, but that is administration and I am sure that the Home Office will do its best.
Knife Crime Prevention Orders
Gavin Newlands Excerpts(5 years, 3 months ago)
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Victoria Atkins
I thank my right hon. Friend for his question, partly because, in highlighting the work of his charity, he gives me an opportunity to correct a misreport in The Sunday Times this weekend about the early intervention youth fund. It erroneously stated that we had cut the amount available to that fund. We have not. We have spent the first tranche—£17.7 million—on 29 projects across the country, and the rest of the money is to be invested in due course later this year.
I am grateful to my right hon. Friend for highlighting the work of his local charity. Many charities large and small do invaluable work, and we very much hope that their knowledge and intelligence will feed into applications for knife crime prevention orders, where those are in the best interests of the child and the local community, so that we can draw them away from criminality before it is too late.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
We all agree that the surge in knife crime in England and Wales is harrowing, and our hearts go out to everyone affected by this epidemic, but these disproportionate measures cannot be the right approach to tackling this issue. Why is the Home Secretary introducing these orders to the Offensive Weapons Bill at such a late stage, when the opportunity to debate them will be limited?
In Scotland, we have taken a different approach. Under a public health approach, which views violence as a disease, the goal is to diagnose the problem and treat the causes. Officers in Scotland’s groundbreaking violence reduction unit work with teachers and social and health workers to prevent young people from being drawn into a criminal lifestyle in the first place. Only by tackling the causes of violence, and not just its symptoms, and by taking a whole-systems approach, can we break the cycle of violence. As a result of this approach, recorded violent crime in Scotland has fallen by 49% since 2006-07 to one of its lowest levels since 1974.
Does the Minister agree there is much to learn from Scotland’s approach to violent crime, and can she confirm whether the Home Secretary is actively considering the public health approach, which has been so effective in Scotland, but with which these measures do not fit?
Crime (Overseas Production Orders) Bill [Lords]
Gavin Newlands ExcerptsWednesday 30th January 2019
(5 years, 3 months ago)
Commons ChamberRead Full debate Crime (Overseas Production Orders) Act 2019 View all Crime (Overseas Production Orders) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 30 January 2019 - (30 Jan 2019)
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
Throughout the passage of this Bill and other Bills where we have engaged with the Security Minister and the hon. Member for Torfaen (Nick Thomas-Symonds), there has been a collaborative approach. That is again the case on Report. As the Minister said, we have had a constructive relationship with him, which is why I was quite disappointed with the change in tone this afternoon—questioning the Opposition’s motives and accusing us of essentially protecting paedophiles. Every Member, as has been said, would like to see these despicable criminals convicted, but we have to ensure that legislation is passed with adequate protections for the human rights that we are obligated to protect under the ECHR. I hope that the Minister will perhaps reflect on that.
Amendment 12, as the hon. Member for Torfaen set out in granular detail—for the sake of the House, I will not seek to repeat that process—seeks to avoid the UK being complicit in allowing for the death penalty to be practised abroad using data provided by us. We have previously heard from the Government that this would amount to driving a horse and cart through the Bill, but this is a matter of principle that the SNP will simply never compromise on. We are obviously a signatory to the European convention on human rights, article 2 and protocol 139 of which provide for the complete abolition of the death penalty.
As I have said in the past, I deeply regret that the Government resisted this amendment from the Lords and took it out in Committee, but I am pleased that we have another opportunity to put this anti-death penalty provision back into the Bill today. In opposing the amendment, the Government are setting themselves not just against our responsibilities under the convention but against their own policy of opposing the death penalty in all circumstances as a matter of principle.
In response to a written question, Baroness Anelay said:
“There has been no change in the British Government’s policy of working towards global abolition of the death penalty.
This Government pursues human rights in their universality—a more ambitious and coherent approach than focusing on a small number of single issues. Our commitment to the Rules Based International Order underpins this work, including through bilateral and multilateral support to global efforts to abolish the death penalty.”
As a signatory to the convention, we really should do everything in our power to avoid compliance in uses of the death penalty abroad. The UK at least claims to be a modern liberal democracy and a champion of human rights the world over. Opposing this amendment is entirely contradictory to those claims.
The Government have frequently refused to provide countries with aid and assistance where it is judged that that assistance could result in the use of capital punishment by the recipient party—for example, the review of UK security engagement when Pakistan resumed use of the death penalty, and declining to assist with services in Saudi Arabian prisons where juveniles were sentenced to the death penalty. Alongside this, as we have heard, the UK will not export products for use in capital punishment—for instance, medicines for use in lethal injections in the US. It would be inconsistent, not to mention a grave disregard for human rights, for the Government to refuse to supply the drugs for US executions, while providing the very information that made that execution possible.
Furthermore, the US already expects the UK to require full death penalty assurances prior to the sharing of information, and it routinely complies with this requirement—for example, in the recent “ISIS Beatles” case, when the Foreign and Commonwealth Office’s strong advice was to seek a full death penalty assurance. This was cited at the time as the Government’s consistent policy, which has been maintained without exception and without difficulty in co-operating with allies such as the US. The FCO agreed that a sole exception would undermine the UK’s consistent and total opposition. No evidence has been presented on unwillingness from the US to engage in data-sharing arrangements where death penalty assurances are required. Without clear evidence to this effect, it is difficult to accept the Government’s proposition that the US would walk away from the negotiating table for that reason.
On new clause 1, while we welcome it as an improvement, it simply does not go far enough. It is restricted to a requirement for assurances in the context of section 52 of the Investigatory Powers Act 2016. However, data could be requested by another state through a different route that does not require active interception on the part of the UK. In those circumstances, our concern would be that these protections would not operate.
Mark Pritchard
The shadow Minister, rightly, gave a litany of examples where the Government have set out to abolish the death penalty worldwide. The SNP spokesman has referred to assurances on ISIS cases and other assurances. Given that we heard from the shadow Minister that assurances have been sought previously, I am a little puzzled about why that should change.
Gavin Newlands
Words are great but it is deeds that are important, and we think that this should be in this Bill. As the Bill is, to use the Minister’s term, the docking station for future agreements, we think that this should be in the Bill, which sets the tone of the regulations for future agreements.
Mark Pritchard
To help the House and to help me—I need all the help I can get—could the hon. Gentleman perhaps give an example of where assurances have not been sought in such cases?
Gavin Newlands
That is not the point—it is about the principles. We have spoken at length about this and listed some of them. It is about the principles, and we are signatories to the ECHR as well. We should ensure that these principles and obligations are in this Bill; otherwise, in my view, we are not following those obligations.
Amendment 1, tabled by the Liberal Democrats, is an improvement on new clause 1, but my only small concern—the right hon. Member for Kingston and Surbiton (Sir Edward Davey) may address this in his speech—is that it might not cover instances where data could be requested by another state through a different route, similarly to the issues that I set out with regard to new clause 1.
Amendment 12 simply refers to
“where the treaty provides for requests”
and therefore provides the most comprehensive level of protection. I urge Members from across the House to back this amendment, as our international reputation may well be degraded even further—if that were possible given the Brexit situation at the moment—if we enable this barbaric practice anywhere else in the world.
On journalistic protections, I very much welcome the amendments tabled by the Government and by the hon. Member for Bexhill and Battle (Huw Merriman), but they still do not go far enough. They are fine in and of themselves, but other areas of journalistic protection still need to be looked at.
Mr Wallace
If the hon. Gentleman was sitting where I am and he had a choice before him where the United States Administration was saying, “Look, here’s the deal—we’ve got 99% of the data and you’ve got 1%. We haven’t got equality of arms. This is the deal—you either take it without strings attached or you do not,” and if there were no deals and no treaty, as the amendment would provide, what would he do?
Gavin Newlands
That is almost a false choice. The Minister is painting it as a black-and-white issue. At the end of the day, on an issue of such grave importance as the death penalty, I would bring it to the House and seek the House’s view. It would not be for me to try to override our principles as set in the ECHR. The USA might well hold all the data, but if we do not hold to our principles, then what is the point? That is our view.
Clause 12 provides for a journalist to be given notice of and made a party to an application that pertains to their confidential journalistic material, but this does not apply to non-confidential but none the less extremely sensitive journalistic material. As I said in Committee, that is at odds with the domestic situation as outlined in the Police and Criminal Evidence Act 1984. The system proposed in the Bill will allow for a significantly reduced opportunity for journalists to engage in arguments about what is, and is not, suitable for disclosure, removing the opportunity for a journalist to make submissions on the issues that this gives rise to in the context of their work.
We believe that the Bill does not provide adequate protection of confidential journalistic material. This could seriously threaten journalistic inquiry and prevent a free press from doing its job, and the implications for our democracy are worrying. We are not alone in having those concerns; the BBC and many others have raised deep concerns about this part of the Bill. Amendment 18 is essential because it ensures that any protections afforded to our journalists in this Bill are not simply domestic but that other states that the Government enter into an agreement with must mirror the UK’s press safeguards.
Amendments 19 to 23, tabled by the Home Secretary and the hon. Member for Bexhill and Battle, would introduce a requirement that notice must be given for all applications for journalistic material. It is vital that journalists can operate freely in the knowledge that Government cannot just seize their information on a whim. As I said, we very much welcome those amendments. However, I echo the concerns aired by the hon. Member for Torfaen about proposed new subsection (2B) and in particular the indictable offence override. I hope that the Minister can give us some comfort on that. Under the Bill, journalists would have a significantly reduced ability to engage in arguments about what is and is not suitable for disclosure, removing the opportunity for them to make submissions on the issues that give rise to that.
In conclusion, there have been clear improvements to the Bill, and we very much welcome those concessions. However, new clause 1 and the journalistic protections simply do not go far enough, and that is why we will back the amendments tabled by the hon. Member for Torfaen.
Gavin Newlands
Every hon. Member would accept that the current wait times in the MLAT process are unsustainable. Notwithstanding the arguments made on Report and at earlier stages, we welcome the Bill and believe that investigations and proceedings relating to serious offences in Scotland will benefit from the use of overseas production orders as a quicker, more streamlined process for obtaining that data.
I am, of course, disappointed that we were unsuccessful in securing full death penalty and journalistic protections. The death penalty protection, at least, may come back to us. Despite the Minister’s tone at the start of the debate, I thank him for his approach to this Bill and to the other Bills on which the hon. Member for Torfaen (Nick Thomas-Symonds) and I have worked.
I thank the hon. Members for Torfaen and for Scunthorpe (Nic Dakin). It has been a somewhat easier and more enjoyable—if that can be the word—experience for having worked together so well. I also thank the Clerks in the Public Bill Office and the various organisations that have provided briefings for Members.
The Minister was right—and he reiterated it—when he said that this was an important but essentially boring Bill. The Minister, the shadow Minister and I find ourselves in a lot of Committees considering Bills that could easily be described as boring, and I am sure that after last night’s vote that may well be the case again very soon. So I shall see them soon, I imagine.
Question put and agreed to.
Bill accordingly read the Third time and passed, with amendments.
Immigration and Social Security Co-ordination (EU Withdrawal) Bill
Gavin Newlands ExcerptsMonday 28th January 2019
(5 years, 3 months ago)
Commons ChamberRead Full debate Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 View all Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2017-19 Debates Read Hansard Text Read Debate Ministerial Extracts
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
My hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) spoke in great detail and with great skill about the many deficiencies of this Bill. I want to focus on just one: ending freedom of movement.
Since 2016, we have listened to those who wish to rip Scotland from the European Union speak triumphantly about the prospect of ending freedom of movement. They speak of this as if it is a victory that will benefit the people of this country. In truth, we cannot measure what will be lost. We will lose countless opportunities, relationships, stories, and human experiences that would have been worth just as much to us culturally and socially as the billions of pounds that our EU membership generates every year.
I know that this will be hard to believe, but, by the end of this week, I will be one birthday away from my 40s. [Interruption.] It is the truth, yes. A clear majority of Members in this place are clearly older than I am. [Interruption.] My hon. Friend the Member for Na h-Eileanan an Iar (Angus Brendan MacNeil) is clearly one of those. I am angry about the impact that ending freedom of movement will have on my generation and on those of older generations, but that anger is as nothing compared with the rage felt about the impact that this will have on younger generations—those who overwhelmingly voted to remain in the EU, or who were left voiceless due to this Government’s opposition to giving the vote to 16 and 17-year-olds.
I equate the situation to the support that the Tory and Labour parties gave to the various versions of tuition fees at university. They were happy to accept all the benefits of free tuition and the unburdened opportunities that it afforded themselves, but are now happy to pull up the ladder of opportunity behind them. So it is with EU membership and freedom of movement—it is selfish, self-defeating and utterly, utterly senseless.
Stewart Malcolm McDonald
I hope to make some sense with this thought, Madam Deputy Speaker. Thinking of the generational shift, does my hon. Friend think, as I do, that, in the past, the waters and the skies of Europe were filled with warring air forces and warring navies, whereas now they are filled with easyJet, Ryanair and low-cost airlines, and with people not thinking twice about darting across the continent, opening up economies and opening up people’s minds? Is it not the case that only the historically illiterate would cheer the ending of such a diplomatic channel?
Gavin Newlands
As usual, far from being senseless, my hon. Friend makes his point with force and alacrity, as is befitting of a budding statesman. I could not agree more—[Interruption.] I think that I have perhaps gone too far with that, Madam Deputy Speaker.
We had to listen to vacuous calls for reductions in the number of EU citizens making their homes and their lives here. We saw the Eurosceptics’ de facto leader stand in front of Nazi-inspired political advertising that cynically equated desperate refugees fleeing war-torn areas of the world with EU citizens. Those Eurosceptics lied about money for the national health service and they lied about Turkey joining the EU. Some even promised that we could stay in the single market and yet still somehow end freedom of movement.
Stephen Gethins (North East Fife) (SNP)
There is one other point that we do not often hear. I am somebody who benefited from freedom of movement, which gave me career and educational opportunities. Why should anybody in here have the right to take away those opportunities for those who come after us?
Gavin Newlands
I could not agree more; my hon. Friend makes a very sensible point.
As I was saying, these are all monumental and unforgiveable lies. Perhaps the remain campaign should have challenged them more effectively. Perhaps the national media were too complacent to hold the liars to account, or—more likely in the case of the Daily Mail, the Daily Express, The Sun and others—were actually complicit in those lies. Perhaps people like me, who opposed Brexit, could have been better at telling the real story of the benefits of EU membership and the privileges that we should never—but perhaps did—take for granted.
Hannah Bardell (Livingston) (SNP)
My hon. Friend is making an excellent speech. Does he agree that it is an absolute tragedy that the UK came at the bottom of the list of EU countries that were able to give a positive view of the EU, and that it is only in the last year or two that newspapers in the UK have been reappointing EU correspondents?
Gavin Newlands
My hon. Friend makes a good point.
When confronted with these alternative facts as portrayed in the media and by some hon. Members here, who can actually blame some people for agreeing to what amounted to a quick fix? The difference between the attitude and actions of the Scottish Government and the Westminster Government following the referendum in 2016 was stark. Immediately after the result was announced, the First Minister of Scotland gave an open-hearted address to EU citizens and the message was crystal clear—“We want you to come to Scotland and we want you to stay”—whereas the Tories spoke of bargaining chips.
Scotland rejected the false promises, the hate-filled rhetoric and the lies. We did this because something greater is being offered in our country. In Scotland, the largest party has been proudly in favour of immigration and freedom of movement. Some politicians in this place are scared to follow this example, but it can be an easy argument to win; they just have to make it. I say to the Leader of the Opposition and some on his Benches that politicians are here not merely to follow public opinion, but to lead it—to persuade and debate the merits of a policy, not to cower meekly in the corner desperately waiting for 29 March to come and go. That is not leadership. It is a total abdication of responsibility.
Freedom of movement is the greatest achievement that we have reached together in the European Union, and it is the single greatest reason why we must remain members. Programmes such as Erasmus allow for an unprecedented exchange of ideas between the students who populate Europe’s rich universities. Millions of people from the UK’s constituent nations, including many Scots, choose to retire to quiet lives on the Mediterranean and millions of others travel across the continent, taking in Europe’s vast cultural heritage. Others have built careers abroad in every conceivable field, allowing us to advance every aspect of our shared society.
Just before the withdrawal agreement, I made a call on social media for people to tell me their stories and experiences of freedom of movement. During the withdrawal agreement debate, I raised the story of Ivan and his family. Ivan was born in Spain, studied in Italy and has worked all over Scotland in Scotland’s NHS. He met his Irish wife, who then went on to work in Denmark. They have had two daughters born in Scotland—one with an Irish passport and one with a Spanish passport, but both indisputably Scottish.
I have other constituents with similar experiences. My constituent Emma Hendrie is a 21-year-old student who studied for a semester at Ghent University in Belgium. Once her fellow students got past her apparently strong Paisley accent, she became lifelong friends with people from Europe and beyond. Alison Hughes lived in the Netherlands on two different occasions, which was a great experience for her children and her family, who got to meet other children from all over the world. Mark Harold emigrated to Lithuania in 2005 to work on music projects, and stayed for many years. Mark was eventually elected to the city council and is now the night mayor of Vilnius; he is the only non-citizen to have sworn on the Lithuanian constitution. Sandra and Steve Murray wrote to me to tell me their story of making a new home in a small village on the French-Spanish border that is populated by Spanish, French, German, Dutch, Belgian, English, Irish and Swedish people, as well as people from many other nations. Their only wish was that the UK would adopt the Scottish view that we all want the same things—peace, equality and opportunity.
This is what we are about to lose. How can we in this place rip this from our young people, who voted overwhelmingly to remain in the EU? How can we rip Scotland out of the free movement area when the Scottish people overwhelmingly voted to continue to have this freedom? My message today is this: I understand that millions of people across England are disillusioned with politics and are yearning for something better, and I am sorry that there is no major party that can help them at this point. I do not blame them for their anger; I am often angry about the situation myself.
Gavin Newlands
I would give way but I am conscious that others want to speak, and I am coming to the end of my speech.
Scotland does have an alternative: Scotland voted to remain. I hope that colleagues across the House will reject this Bill and ultimately give people a chance to have the final say. I also reiterate that immigration powers must be devolved to Scotland so that we can get on with building an open and welcoming immigration system that works in the interests of Scotland. However, it would seem that Scotland’s interests are now wholly incompatible with those of the rest of the UK. That leads to the only clear solution—to become like every other normal country and secure our independence so that we might forge that better future.
To conclude, perhaps on a note of consensus, we have just marked Robert Burns Day, so I would like to ask hon. Members to reflect on some words from Scotland’s immortal bard—not “parcel of rogues”, although rarely would that particular verse have been more apt, but this:
“For a’ that, an’ a’ that,
It's coming yet for a’ that,
That Man to Man, the world o’er,
Shall brothers be for a’ that.”
Several hon. Members rose—
Counter-Terrorism and Border Security Bill
Gavin Newlands ExcerptsTuesday 22nd January 2019
(5 years, 3 months ago)
Commons ChamberRead Full debate Counter-Terrorism and Border Security Act 2019 View all Counter-Terrorism and Border Security Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Commons Consideration of Lords Amendments as at 22 January 2019 - (22 Jan 2019)
Nick Thomas-Symonds (Torfaen) (Lab)
I am grateful to the Security Minister for his opening remarks, and for his tone and the consensual approach he has taken. We most definitely do not agree on everything, and we have robust exchanges across the Dispatch Box, but we try to work together constructively on these serious matters whenever we can. I am grateful to him for accepting Lords amendment 1 to clause 3, which has caused controversy in the past. The clause deals with a situation in which it was previously illegal to download these terrible recruiting videos but not illegal to stream them. We have to have a situation in which both are illegal. We cannot have a situation in which watching something later on is illegal but watching it at the time is not. This has been difficult to deal with, and there is no perfect way to capture it in legislation.
As the Minister knows, I was also concerned about the three clicks approach, and I am pleased that the Government have dropped it. Dropping it has not, as some suggested, led to a situation in which one click could lead to an offence being committed. The Bill sets out clearly that anyone inadvertently clicking in that way would not be covered by the offence. I was concerned that the reasonable excuse defence mechanism went put on to the face of the Bill, particularly in relation to journalists and academics, and I am pleased that the Government have now accepted those concessions. It is clear that in the years ahead we will have to look at precisely how the clause works in practice, but it is important to send a clear message that streaming these terrible videos is equally as awful as downloading them and watching them later on.
On designated areas, the Security Minister quoted what I said in the Commons because this measure was introduced at a very late stage and I was unable to have that discussion with him in Committee. We do not oppose the overall aim of dealing with so-called foreign fighters, but the clause needed significant work. Again, I am pleased with the work that has been done and I pay tribute to my Labour colleagues in the Lords and those of other parties there who have put in the work and time to improve the clause. I am also grateful to the Minister for accepting the changes.
There was originally a non-exhaustive list of reasonable excuse defences on the face of the Bill. This has essentially been taken and carved into the law itself, so that people do not commit the offence in the first place if they have a particular purpose for travelling. That was important for two reasons. First, someone with a perfectly legitimate reason for doing something would inevitably have been stopped, and would have been able to raise the reasonable excuse defence only further down the line. It is therefore much better in principle that they do not commit the offence in the first place. Secondly, the last thing anyone in this House wants is to deter people with a perfectly reasonable motive from going to areas of conflict. Aid workers are an example, and I know that the Chair of the International Development Committee, my hon. Friend the Member for Liverpool, West Derby (Stephen Twigg) has tabled an amendment on that.
For completeness, Lords amendment 3 states that the offence is not committed if one or more of the purposes of the visit is to provide
“aid of a humanitarian nature…carrying out work for the government of a country other than the United Kingdom…carrying out work for the United Nations or an agency of the United Nations…carrying out work as a journalist…attending the funeral of a relative or visiting a relative who is terminally ill…providing care for a relative who is unable to care for themselves”.
That is not meant to be an exhaustive list.
In addition, the reasonable excuse defence is maintained. This relates to the amendment tabled by my hon. Friend the Member for Liverpool, West Derby. The reason is that if no exception is already carved into the law and the purpose of the visit is not included in the list, it could none the less appear as a reasonable excuse defence. In an intervention on the Minister, the hon. Member for Torbay (Kevin Foster) talked about a burden in these cases. With the reasonable excuse defence, there is of course a burden on the defendant to raise it, but the burden to disprove it lies with the prosecution. In the carve-outs in the law that I have suggested, however, these people would not be committing the offence in the first place.
I want to press the Security Minister on how exactly this is going to work in practice. As he knows, there are two models around the world: the Australian model, which I think the sunset clause has been taken from, and the Danish model. The way the Danish model works in terms of not committing the offence in the first place involves an extensive system in which people obtain licences before they go. That is not without its problems, because journalists sometimes like to travel to certain areas without advertising the fact that they are doing so, so I am not suggesting that this would be a silver bullet or a magic solution. However, there will presumably have to be a system whereby we can show clearly that someone has not committed the offence in the first place, as against those situations in which there might be a reasonable suspicion that an offence had been committed and in which the reasonable excuse defence was raised later. Any details from the Minister on how this will work would be appreciated.
The other Lords amendments on these issues are also important. They include the introduction of a sunset clause for the statutory instruments to designate particular areas so that they cease to apply and have to be replaced. This will ensure that the Government regularly make the case to Parliament if they wish to continue with a designation in the long term. Lords amendments 7 and 8 relate to two additional concessions. Lords amendment 7 provides that the Government have to make a statement outlining why they believe an area needs to be designated at the same time as they lay the relevant statutory instrument. Similarly, Lords amendment 8 states that when the Government revoke a designation, the change must be subject to the negative resolution procedure in Parliament in case anyone wishes to object to it. Taken together, the amendments produce a much better clause in relation to the designated areas. It will allow the Government to tackle the problem of so-called foreign fighters, of which we are all conscious, but it now does so in a more balanced, fair way, without deterring those who wish to travel to areas of conflict for perfectly honourable and legitimate reasons. No one in the House would wish to prevent them from doing that.
There are three other broad themes to the amendments in this group. The first relates to extraterritorial jurisdiction, which the Minister will be aware I have raised before in a slightly different context. The Government added extraterritorial jurisdiction to the offence of inviting or recklessly expressing support for a proscribed organisation, and concern was expressed about that by the Joint Committee on Human Rights. The Committee was concerned that the extension of extraterritorial jurisdiction to certain offences was problematic when there was no equivalent offence in the country involved. The safeguard will now ensure that extraterritorial jurisdiction applies only if the offence was committed by a UK national or UK resident. That is in line with what the Joint Committee recommended, and I welcome that change.
Turning to the independent review of the Prevent strategy, I genuinely welcome the Security Minister’s acceptance that a review is required, and I give credit to the shadow Home Secretary, my right hon. Friend the Member for Hackney North and Stoke Newington (Ms Abbott), who has argued for one for some considerable time. As the Security Minister knows, I have visited Prevent programmes across the country, including in south Wales. My hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) also raised the issue of far-right terrorism, which this House must be conscious of and take action on.
My argument about the independent review of Prevent is that there is a concern that its aims may end up in conflict with or become slightly confused between intelligence gathering, what I would call the more welfarist or safeguarding aspect of Prevent, and community cohesion. There has been an issue around community cohesion, because the facilities that are available to local authorities, for example, are an important part of that. I have had conversations in which it was clear that the pressures on local authority services are really affecting Prevent’s ability to deliver.
There are also aspects or parts of our society—in fairness to the Security Minister, he pointed this out himself—that have lost faith in the programme, and it is time to look at that. We need a programme in which everyone can have faith. None of us wants to see people living a life of violence and hatred that is driven by these kinds of ideologies. We all want to prevent people from doing that, but let us do so in the most effective way. From our conversations, I am hopeful that the Security Minister will be keen to have a wide-ranging review that can deal with such issues.
While I am on the subject of Prevent, I know that the competition to become the new independent reviewer of terrorism legislation has now closed to applications, and I hope that someone new will be appointed soon. I hope, too, that the Minister will be receptive to suggestions about how exactly to construct this independent review, so that we can have the most robust and reliable conclusions possible and, if necessary, make appropriate changes.
Lords amendment 16 is another sensible amendment, relating to bank accounts or terrorist’s bank accounts. There was an issue in the law as originally drafted in that the account would have to be in the name of a particular person. Of course, that did not take into account the fact that people can have control of other people’s bank accounts by their behaviour, and it is important that that was covered in the legislation as well.
Taken together, all the Lords amendments make this legislation far better, and it is pleasing that we end the passage of this Bill on a note of significant consensus.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
I echo the comments of the hon. Member for Torfaen (Nick Thomas-Symonds) about the consensual approach taken by the Government during the passage of this Bill and about the concessions already made during earlier stages, including on the likes of the three-clicks provision. As the Scottish National party has said since this process started last June, we welcome the Government amending this important legislation and appreciate the need to combat the constantly evolving threat from international terrorism in the modern age. However, we must be extremely careful how that is executed, and any new powers must be subject to stringent checks and safeguards if we are to maintain a healthy balance of security and civil liberties.
I will deal with the amendments in fairly short order lest I repeat many of the points already made by the Labour spokesman today or points that either of us made during earlier stages. The SNP welcomes the amendments—the improvements—made to the Bill in the other place and, as an SNP Member, I say that through gritted teeth. However, most of the amendments made in the other place were argued for in one way or another by the hon. Member for Torfaen and myself throughout the passage of the Bill in this place. None the less, I am pleased that the Government have dropped their opposition to many of the additional safeguards, and I hope the Minister is as generous in his treatment of the Crime (Overseas Production Orders) Bill on Report and Third Reading next week.
Gavin Newlands
I am not saying that the review will be watered down in any way, but I will give way to the Minister on that point.
Mr Wallace
I am grateful to the hon. Gentleman. I would not like him to think that we ordered the review because we do not think that the strategy is safeguarding people. He refers to the fact that we must do much better based on his meeting with Safaa Boular, who by the way was convicted of planning a proper terrorist plot, no matter how nice she may have been in the detention centre. The reality is that the strategy has safeguarded hundreds of people away from violence and has been proving a success, so I would not want him to leave an impression that it has not. Of course, I agree that, like all schemes, it does not work for every single person, but it has had considerable success in all our constituencies.
Gavin Newlands
I do not dispute anything that the Minister has just said, but there is a huge clamour for review because of the inadequacies of the Prevent strategy, as seen by many in the community. His points about the terrorist plot, and so on, are well made, and I do not dispute them for one second. I am not arguing that Safaa Boular should not have been punished or put in prison; my point is about the fact that she was radicalised in the first place.
Yes, we need legislation that gives the police everything they need to fight serious crime and terrorism, but the Government should bear in mind that this Bill is, in many respects, deeply controversial. They must get it absolutely right, and that will be impossible without a full, independent review—that review has been hamstrung by the Government before it starts. I ask that the Opposition be consulted on the terms of reference, to which the right hon. Member for Kingston and Surbiton (Sir Edward Davey) alluded earlier, and on the timescale for that consultation.
Stephen Twigg (Liverpool, West Derby) (Lab/Co-op)
I rise to speak to amendment (a), in my name, to Lords amendment 3. Two years ago, in the space of just six months, we saw five terrorist attacks here in the United Kingdom: the Westminster attack, Manchester Arena, London bridge, Finsbury Park and Parsons Green. Those attacks killed 36 people and remind us all of the very real and continuing threat of terrorism here in the UK. Indeed, we were reminded of it again just last weekend by the latest terror bombing in Northern Ireland.
We know there are people living in fragile states across the world who face this threat daily. Last week, we saw the appalling attack in Nairobi, which killed 21 people, and in western and central Africa, we have seen the appalling terrorist activities of Boko Haram, notably in Nigeria. Earlier this month, more than 9,000 people had to flee Nigeria for Cameroon after such an attack.
The whole House is united in our condemnation of terror, in extending our condolences to all those who have lost loved ones to terror and in our debt of gratitude to the emergency and security services. These appalling acts, both here and in other parts of the world, underline the need to update existing powers to respond better to the threat of terrorism in the modern age, which is why I support the Bill.
I am grateful for the changes that have been secured, and I pay tribute to the Labour Front-Bench team, particularly my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), to the shadow Home Affairs team and to others on both sides of this House and in the House of Lords. The Bill’s consideration has served to make significant changes that have improved the Bill. I particularly welcome Lords amendment 3, tabled by my noble Friend Lord Rosser and agreed by the Lords, and my amendment (a) relates to that amendment.
As has already been explained, the Government’s original approach was to introduce a “designated area” offence to give the Home Secretary the power to designate all or part of a country as forbidden to UK nationals and residents. If an individual is charged with the offence and they are not able to prove that they have a reasonable excuse for entering or remaining in the designated area, they could receive a sentence of up to 10 years in prison. The only original exemption was for Crown agents, and there was wide concern that that could have unintended consequences for a number of categories of people, including United Kingdom citizens who work as aid workers.
Lords amendment 3 was made to reverse the burden of proof by introducing a number of specified purposes that are excluded from the scope of the new offences. I absolutely accept the urgent need to tackle the real issue of so-called foreign fighters, but in doing so, it would be wrong to have the unintended effect of deterring people with perfectly legitimate purposes from travelling. The amendment refers to those working in the humanitarian field and to journalists, which is a truly significant improvement in protecting UK nationals who have legitimate reasons for travelling abroad. I am particularly concerned that, without this amendment, there might not be sufficient protection for aid workers and for the organisations that employ them, which could have a devastating effect on the provision of vital humanitarian aid.
Non-governmental organisations, led by BOND—British Overseas NGOs for Development—have been urging this House to accept Lords amendment 3 because it exempts individuals involved in the provision of aid of a humanitarian nature. In December 2018, the chief executives of 22 organisations signed a statement calling on the Government to introduce an exemption for aid workers and others with a legitimate reason to travel to a designated area.
I am delighted that the Government, on reflection, are content with Lords amendment 3, but the purpose of amendment (a) is to urge the Minister to go a little further and add a number of additional specified purposes. Lords amendment 3 refers to those working to deliver
“aid of a humanitarian nature”.
I am concerned that, defined narrowly, this could unnecessarily limit the activities that are considered legitimate, which is why my amendment would extend that list. First, it would cover work on a development project or programme. That could be a long-term programme to deliver health or education, or one that promotes women’s economic empowerment. Secondly, and importantly, it would cover work on a peace-building project or programme. Peace building is defined by the United Nations as:
“A range of measures targeted to reduce the risk of lapsing or relapsing into conflict by strengthening national capacities at all levels for conflict management, and to lay the foundation for sustainable peace and development.”
Nick Thomas-Symonds
I again welcome the approach that the Security Minister has taken in reaching consensus on these matters.
First, and this is a very important principle, in this Bill we have maintained and preserved the right to receive legal advice in private. It is a very important principle and, as the Security Minister knows, I pressed him on it at a very early stage of and throughout the proceedings on the Bill. There was a concern either that someone who had been stopped and detained would use the ability to contact a lawyer to communicate the fact that they had been stopped—in other words, to contact someone who was not a lawyer—or, alternatively, that a genuine lawyer was contacted but that the lawyer would then somehow, inadvertently or otherwise, pass on information about the stop. I pressed the Minister on the solution that is now in the Bill at quite an early stage about a kind of duty solicitor scheme that could deal with both of those concerns, but also ensure that we preserved the very important right of legal advice in private. I am pleased that we have reached this stage on the Bill and that the Government have made that concession.
I now turn to a set of Lords amendments, starting with Lords amendment 14, on the urgent procedure for retaining and copying property at the border. I have looked at the Court of Appeal judgment in the David Miranda case. As the Minister says, the judgment, at paragraph 96, identified that there is
“no provision for authorisation by a court or other independent and impartial decision-making body in a case involving journalistic material prior to the use of the Schedule 7 power or, in an urgent case, immediately after the obtaining of the material pursuant to the exercise of the power.”
I fully accept that there are going to be very urgent situations, and this is expressed in terms of an imminent threat of loss of life or of injury. I am pleased to hear what the Minister has said about the code of practice, which we can look at in due course. I previously suggested that there could be situations where a decision maker was available at the end of a telephone line, but I appreciate that there will be truly exceptional cases. The key to this is that, while I fully accept the law needs to be brought into line with what has been suggested in the Miranda case, we have to understand that these must be truly exceptional cases. That is something we can set when we come to debate the code of practice, being very clear that in these particular circumstances there will have to be a genuine, imminent threat that needs to be dealt with. Again, however, bringing the law into line with what the Court of Appeal has suggested is, on the whole, to be welcomed.
I want to speak to two other sets of Lords amendments. I will start with Lords amendments 17, 19, 26, 28 and 29 on the definition of hostile activity. The difficulty is that if this is defined purely in terms of criminal activity, that does not capture other types of hostile espionage activity, which may not necessarily bring into play parts of the criminal law. I did think that there was a danger of this being drawn too broadly, and I am pleased that these amendments narrow the definition, so that when we talk about threatening the economic wellbeing of the UK, we have now added
“in a way relevant to the interests of national security”.
The key is to ensure that we have the powers we need while also being precise about what we consider “hostile activity” to be. It is a welcome amendment that improves the Bill.
Finally, Lords amendments 41 and 42 relate to information sharing. Schedule 3 provides that an officer questioning someone at the border can hand over information to appropriate bodies, as decided by the Secretary of State. I think that narrowing the provision to bodies exercising public functions is to be welcomed, but I have regularly made the point to the Minister during the passage of the Bill that bodies such as local authorities will need the appropriate resources, expertise and support to handle the information, particularly when it is likely to be highly sensitive.
Taken together, I think that the Lords amendments that I have spoken to, covering the four themes I have referenced, make the Bill a better and more effective piece of legislation, although I am keen to engage with the Minister when the codes of practice to which he referred come before both Houses.
Gavin Newlands
The House will be relieved to hear that I intend to be even more succinct in my comments on the provisions pertaining to port and border control powers. We have again seen positive movement in this area.
Despite the best efforts of the hon. Member for Torfaen (Nick Thomas-Symonds) and myself, when the Bill reached the other place it restricted access to a lawyer for those detained under schedule 7. Specifically, it restricted an individual’s right to consult their legal representative in private, away from a relevant officer. As I and other Members have said at every stage of the Bill’s consideration, the ability to speak to a legal representative in private is a fundamental right that should not be infringed. Indeed, as the Minister outlined in oral evidence to the Public Bill Committee, both the Law Society of Scotland and Law Society of England and Wales have reinforced that point. Richard Atkinson stated in evidence that the UK’s criminal justice systems have an excellent reputation but that their very
“cornerstone is legal professional privilege…not access to a lawyer”.––[Official Report, Counter-Terrorism and Border Security Public Bill Committee, 26 June 2018; c. 30.]
We therefore very much welcome Lords amendments 12, 15, 35 to 37, 39 and 40, which ensure that that right is protected. Our preference would be for anyone detained under these powers to be able to consult legal representatives of their choosing, but I have heard the Government’s case for the power to require a detainee to consult a different solicitor and, although I would prefer not to have that provision, I completely understand the rationale behind it. I only hope that the power is not abused to ensure lesser representation.
On that note, we also very much welcome amendments 33, 34 and 38, which confirm a detainee’s right to be informed of their rights, which will now be in the Bill rather than simply in the draft code of conduct.
We also welcome Lords amendments 17, 19, 26, 28 and 29—I am not used to having so many Lords amendments, Madam Deputy Speaker. As the hon. Member for Torfaen said, the narrow definition of “hostile act”, so that it is an act that threatens the UK’s economic wellbeing, qualifies only if it
“is relevant to the interests of national security”.
We on the Scottish National party Benches are well known for standing up for civil liberties and human rights, but we do understand that keeping people safe and secure is the primary function of government and fully support our services having the appropriate powers to keep us safe. We therefore support an expedited process for retaining and examining property and confidential material where there is an immediate risk of death or serious injury, or of a hostile act being carried out. That relates to Lords amendments 18, 25, 27 and 30 to 32.
I am sorry to have to mention Brexit so close to the end of our considerations, but it will potentially have a huge impact on the effectiveness of much of this legislation. One of the greatest threats to our national security and counter-terrorism capacity is Brexit and the risk of losing seamless access to multilateral information-sharing tools. Terrorism and organised crime will continue to operate after 29 March without care towards the UK’s membership of the EU—I see that the Minister is delighted by the mention of Brexit. Yet without Europol, Police Scotland will no longer have access to information systems, support and expertise that help make Scotland, the rest of the UK and Europe a safer place. We cannot risk having arrangements that dilute the access that we currently have, and any new arrangements must consider Scotland’s distinctive criminal justice system in order to provide a continuing basis for the direct co-operation that currently exists between law enforcement agencies in Scotland and their counterparts. If we have not made provision to keep our policing effective outside the EU, how can we expect Prevent and everything that has been discussed today to work even after a review?
I thank the hon. Member for Torfaen and the Minister for the manner in which the Bill has been debated throughout its passage and I look forward with joy unconfined to dealing with them again next week on the Crime (Overseas Production Orders) Bill.
Draft Immigration (Leave to Enter and Remain) (Amendment) Order 2018
Gavin Newlands Excerpts(5 years, 3 months ago)
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Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is a pleasure to see you in the Chair, Mr Robertson. We echo many of the sentiments expressed, and will not vote against the motion.
It is essentially a common-sense motion, given the delays experienced at the border. Those delays will certainly not be improved by Brexit, but to take up some of the comments made by the hon. Members for Manchester, Gorton, for Cardiff South and Penarth, and for Bermondsey and Old Southwark, it is important that we work to ensure the correct balance of e-gates and manned gates, ensuring that there is enough overall capacity at the border.
I know there have been lots of stories about Heathrow and delays there, but in particular I am thinking about the small airports, such as Glasgow airport in my own constituency, where there is clearly a much smaller border area, so these changes will have a much bigger relative impact for someone stuck behind the daily United States and Canada flights all coming at the same time. Has any impact assessment been made of those relative impacts versus the impacts at larger airports, such as Heathrow and Gatwick?
We share some of the misgivings about how the countries have been selected. I hope that is kept under review, and similarly for the points made about Commonwealth countries. Mr Robertson, I could go on about the Government’s overall approach, which we would call shameful, to immigration policy—the hostile environment, family reunion rules, and ending freedom of movement—but that would be slightly out of scope for today and given that we have the Second Reading of the Immigration Bill and a Bill Committee to follow, I suspect that I will have to keep my powder somewhat dry. However, you will be relieved to hear that we are not seeking to divide the Committee today and we look forward to the Immigration Bill next week.
Stephen Doughty
Thank you very much for your chairing today, Mr Robertson. I want to make specific remarks about the technicalities of the order and ask the Minister some questions. Before I do so, I have to say I am deeply disappointed by the highly divisive and inaccurate comments made by the hon. Member for Brigg and Goole. Such an attitude is deeply disappointing, especially when talking about whites and non-whites, not least when many European countries have incredibly diverse populations. France has a very diverse population as a result of its history in Africa and its relationship with Algeria. Let us look at the Dutch Somalis and Somalilanders, the Italian relationship with the horn of Africa, and the many different countries across Europe that have a hugely diverse population, just as we do in this country. We should not have comments about whites and non-whites when we talk about mass immigration.
It is also deeply disappointing to hear such comments from somebody who is supposed to be the Prime Minister’s trade envoy to Canada. I lived in Canada for some years with a Canadian-British family member and I know the Canadian Government’s attitude is very different from the one that the hon. Member for Brigg and Goole seems to represent.
Gavin Newlands
I have been to Canada and I share the hon. Gentleman’s thoughts on the Canadian approach to immigration, which is wholly different from the British one. The hon. Member for Brigg and Goole talks about Europe being a white club, but I believe Canada’s population is 86% white European, so what does that say about his earlier point about Europe being a white club when he talks about Canada?
The Chair
Order. I do want to get back on to the specific elements of this order. I ruled earlier that inappropriate language should not be used and we should treat each other with respect. We also have to stay relevant to this order.
Future Immigration
Gavin Newlands Excerpts(5 years, 4 months ago)
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Gavin Newlands (Paisley and Renfrewshire North) (SNP)
The Home Secretary’s boss, the Prime Minister, talks proudly of ending free movement once and for all, in complete denial of the fact that free movement has been one of the biggest sources of opportunity for UK citizens in the past quarter of a century. Let us be in no doubt: this White Paper is not being taken forward in Scotland’s name. This statement highlights exactly why we have asked, time and again, for immigration powers to be devolved. Will the Government have a rethink and devolve immigration powers to the Scottish Parliament? We voted to remain, and we want no piece of this whatsoever.
Sajid Javid
Scotland is part of the United Kingdom and we have a single immigration policy for the entire UK.
Crime (Overseas Production Orders) Bill [ Lords ] (First sitting)
Gavin Newlands ExcerptsTuesday 18th December 2018
(5 years, 4 months ago)
Public Bill CommitteesRead Full debate Crime (Overseas Production Orders) Act 2019 View all Crime (Overseas Production Orders) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at Tuesday 18 December - (18 Dec 2018)
Nick Thomas-Symonds
It seems to me that the Minister is saying that there are circumstances in which he would make a different judgment. His judgment to me is that now is not the time to make a stand. Respectfully, I have to disagree with him. I believe that now is the moment to make a stand. The Opposition oppose the removal of the amendment.
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
It is a pleasure to serve under your chairmanship, Mrs Moon. The hon. Gentleman has set out the opposition to the Government amendment with commendable detail and clarity. I do not seek to repeat too much of that, but I will make a brief statement setting out the Scottish National party position.
The Minister spoke of principles and of tying the hands of Governments. I have a different set of principles: the SNP has not been a member of a Government who have passed on information without seeking or receiving assurances about the death penalty. The Minister also spoke about a compromise potentially before Report. That is largely a matter for the Government and the Labour party, although we would be more than happy to engage in that process.
To be crystal clear, the SNP will only support a compromise where the default position of Parliament would be not to provide data where assurances on the death penalty have not been received or sought and where it would be for the Government to argue otherwise in exceptional circumstances. At the end of the day, article 2 and protocol 139 obligations should be met and our shared principles across the United Kingdom on capital punishment should be protected.
Mr Wallace
The hon. Gentleman says it is for the Government to argue about exceptional circumstances. Is he saying that a Government should always seek death penalty assurances and if they do not get them, there could be exceptional circumstances, or is he saying that there are no circumstances or no exceptional circumstances—no nothing—where they would be allowed to seek that?
Gavin Newlands
I am saying that it is our position, and it should be Parliament’s position, that we should not give information to any country seeking the death penalty or seeking information from the United Kingdom in pursuit of the death penalty.
We are trying to listen to the principle that the Minister has set out, and we are trying not to bind completely the hands of future Governments. If we are looking to achieve compromise and there is a small glimmer whereby the Government can argue in exceptional circumstances for that duty to be removed—we will be arguing against that at every turn, I am sure—it should be set out in the Bill, so that we are not handing over information, but Governments can argue for doing that in exceptional circumstances. What the Minister has been arguing should be flipped on its head. We will vote against the Government amendment.
Mr Wallace
I have listened to the SNP, and I am happy to look at further scrutiny of those decisions when we consider exceptional circumstances. The SNP, having been in government in Scotland for a long time, will know that Governments very occasionally encounter circumstances where they have to make difficult decisions. If the hon. Gentleman is looking for more scrutiny, we are absolutely happy to provide that. We are also happy to provide in the Bill a primary obligation to seek death penalty assurances in a way that has never been done before. We are happy to look at that.
What we cannot do is seek and acquire those assurances, because we are not in charge of the other country. We can certainly bind our hands to seek it in primary legislation and to explain why we have made an exceptional circumstance. I have no objection to trying to reach that position. My challenge is in the absolute. My challenge is in the bit where there is absolutely no position for a Government to make a choice or decision that is so exceptional that something has to be done. It was never any different with the previous Labour Government. In fact, a Secretary of State of that Government did exactly that when push came to shove, and the details around that are even more extreme.
Never did I hear an objection about the overseas security and justice assistance document, which is a public document that has been in circulation since 2014. It is not from the shadow Attorney General or the Liberal Democrat shadow Attorney General. It says absolutely clearly in part 9:
“Where no assurances are forthcoming or where there are strong reasons not to seek assurances, the case should automatically be deemed ‘High Risk’”—
I think we recognise that and agree on it—
“and FCO Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance.”
That is the reality.
If this is about making a stand, what has been the Labour party’s stand been since 2014, or since 2000, when it was carrying out these things? I venture that it has not taken that stand because it knows that in government—it aspires to be a Government sooner rather than later—it might have to make those decisions. That is why members of the Committee are seeking not to agree that amendment. We can offer more assurances and scrutiny of that decision, but as the Minister of State for Security, I make the decision to try to help our law enforcement agencies catch these people time and again, and I cannot bind their hands 100%. The United States has made it clear that we will not be able to progress with the treaty if the amendment falls in the legislation in the way it does.
Mr Wallace
The hon. Gentleman is right on that. I cannot speak for the next Government, but the Bill is about our requests to our courts, and this Government would not enter into an agreement with a Government that went around oppressing the press and the media. Despite the fake news, this Government believe that journalism and the press are vital to exposing the truth, corruption and everything else, and we absolutely would do all we could to protect that, both in domestic proceedings and with any international treaties. That is why the Bill is drafted so it is both compliant with European law and has high regard to the first amendment.
Gavin Newlands
I was going to speak to amendment 18, but the hon. Member for Torfaen made points broadly similar to those I was going to make. The Minister has addressed some of them, but I have one question. He said he would never countenance handing over information to a country with fewer journalistic safeguards than we have here. If that is the case, why can we not have that safeguard in the Bill, which all these international treaties and agreements will plug into? What is the danger of building that safeguard into the Bill?
Mr Wallace
First of all, the Bill is simply the docking station from here to there. It is not about international treaties—when we sign our treaties, we can dock them into the Bill. The principle of allowing a Government to negotiate without their hands narrowly tied about what they can discuss is important.
Secondly, remember that—this probably comes down to how we would draft such a provision—for the purposes of security and so on we sometimes share information with countries that do not have the same high standards as us. If we had a credible threat against aeroplanes with British tourists taking off from third countries, we would not say, “We’re not going to tell you,” and let British tourists get blown out of the sky. Of course we share information with countries, but this is about journalistic information as it applies to investigations, criminal proceedings and so on.
We can do more to provide assurances about journalistic material, notification and journalists in court here, and I can give the Committee the assurance that we would enter into international agreements only where we felt there was high regard for the protection of journalists, but I do not think that safeguard needs to be in the Bill. There would be a challenge about how exactly to draft it. It would also go against the principle of letting the Government of the day be free to hold a negotiation in a way that would achieve the same things, but could address all the different issues. Every country will have things that we have issues with, and I bet that not one country will tick all our boxes across the board. What is my highest priority? Protection of the ECHR, the right to life, journalistic protections—those things will be right up there at the very top, which I think is the best way to do it.
Nick Thomas-Symonds
Amendment 11 is about safeguards on bulk data. Baroness Williams of Trafford spoke on this issue in Grand Committee on 5 September and explained why she felt that an amendment excluding bulk data was unnecessary:
“The Bill has been drafted to require appropriate officers to consider carefully what data they are targeting—which, of course, is not the case with bulk data—and where the information is stored, in order to help with the investigation and prosecution of serious crime, in addition to demonstrating that the data will be of substantial value to the investigation and in the public interest. It feels to me that there are sufficient safeguards in place,”.—[Official Report, House of Lords, 5 September 2018; Vol. 792, c. GC150.]
Put simply, there is a worry that under current safeguards it could be argued that bulk data was of substantial value to any criminal investigation and was in the public interest. This is a simple but discrete point regarding reassurances that bulk data will not be accessed by the powers in the Bill. The Government’s position, as set out in the other place, is that the safeguards there are sufficient to ensure that as the Bill stands, but I am hoping that the Minister will be able to set out and expand in greater detail on the reassurance given in the other place.
Gavin Newlands
The amendment tabled by the hon. Member for Torfaen is probably more grammatically correct than mine—my high school English teacher would not be surprised by that—but the principle is exactly the same. Rigorous safeguards are required to ensure that overseas production orders are not open to abuse in terms of requesting access to bulk data.
As someone who suffered—served—on the Investigatory Powers Bill Committee, I used to read the excerpts on the levels of oversight on the various elements of bulk data collection and interception to help to put me to sleep at night; if this is a dry Bill, then the Investigatory Powers Bill, although incredibly important, was even drier. The Scottish National party held out strong opposition to bulk data collection, and it is important to explain why we tabled this amendment: to remind the Minister that we believe that surveillance should be targeted by means of warrants that are focused, specific and based on reasonable suspicion.
Although the Government produced an operational case for bulk powers in between the draft Bill and the Bill as scrutinised in Committee, it was inadequate because it was largely anecdotal. We still firmly believe that such powers do not pass the legal tests of necessity and proportionality, and the additional test that the same results could not be achieved using more proportionate and less intrusive means. Two American Committees that asked to look at these Bills concluded that the same information could be obtained using more proportionate and less intrusive means.
Amendment 21 in my name is straightforward; the hon. Gentleman has already outlined many of the arguments and quoted Baroness Williams, but we agree that applications for bulk data lack a careful consideration of specifically which data is to be targeted. However, the Bill does not contain any express provision requiring orders to be targeted in the manner the Government describe. It is perfectly possible for officers to argue to the Government’s satisfaction that bulk data will be of substantial value to criminal investigations and in the public interest, given that the Government already regularly make arguments about why bulk powers are required in a wide variety of circumstances.
That assumption on the Government’s part does not amount to an adequate safeguard against the potential for bulk data to be requested under an OPO. Any access to routine daily surveillance of communications en masse should be expressly prohibited, and that is what the SNP amendment and the hon. Gentleman’s amendment are both intended to do. I urge the Minister to accept our amendment.
Mr Wallace
I hope I can put colleagues’ concerns to rest. The Bill does not provide for the acquisition of bulk data. The only means of acquiring bulk data is provided for in the Investigatory Powers Act 2016.
The test in clause 4 of this Bill clearly sets out that the power to obtain an overseas production order is to make a targeted request for specific data. When applying for an overseas production order, an officer must specify or describe what electronic data is sought, and applications must therefore be precise and specific. Moreover, the Bill provisions have been drafted to require officers to consider carefully what data they are targeting, and to be able to demonstrate that the data would help with the investigation and prosecution of a serious crime.
There are safeguards, also in clause 4, that require the judge to thoroughly test the need for the data sought and to be confident that
“there are reasonable grounds for believing that the person against whom the order is sought has possession or control of all or part of the electronic data specified or described in the application”,
and, in clause 4(5), that the data will be of “substantial value” to an investigation or proceedings and, in subsection (6), that producing the data is “in the public interest”. Those tests make clear that the quest for electronic data using overseas production orders will be targeted, specific and not about large volumes of data relating to a number of unknown persons.
I accept that hon. Members may be referring to bulk personal datasets, but those cannot be required using overseas production orders either. The Investigatory Powers Act fact sheet on bulk personal data, which the hon. Member for Paisley and Renfrewshire North must have remembered from his reading, defines them as
“sets of personal information about a large number of individuals, the majority of whom will not be of any interest to the security and intelligence agencies. The datasets are held on electronic systems for the purpose of analysis by the security and intelligence agencies. Examples of these datasets include the electoral roll, telephone directories and travel-related data.”
The request for a large volume of data on a specific individual, or even a group of individuals such as a criminal gang if every individual is of investigatory concern, does not constitute a bulk personal dataset, as the request is still targeted and specific. For requested data to constitute a bulk personal dataset, it has to include the full bulk dataset, which would include the personal information of large numbers of unknown individuals of no interest to the investigation. Again, under the Bill, officers cannot just request bulk personal data that would not be of substantial value to their investigation.
Gavin Newlands
To clarify, on the specific information request that the Minister speaks of, can that information be taken from data that is harvested in bulk?
Mr Wallace
Certainly not through this process. Any use or acquisition of bulk data is guided by the Investigatory Powers Act 2016, and those conditions are set out. Someone could not use the Bill to go along to court and say, “Google, can I have data on everyone in Scunthorpe who uses the internet?” That would be a bulk dataset. However, they could go along to the court and say, “I’m investigating somebody called Gavin Newlands, and I would like to see the comms data record and some of his content.” They would make the request to the judge, possibly for more than one set of data—browsing history and mobile phone text history, perhaps. That would be two sets, but they would be specifically targeted at an individual, and would therefore not be a bulk dataset. That is the difference.
Bulk datasets are required under the 2016 Act by our intelligence service and so on, and they are overseen by the Investigatory Powers Commissioner’s Office and the warrantry system, which now has the double lock in many cases. They can also be overseen by Ministers, and to some extent by the Intelligence and Security Committee when investigating operations and how that data was used. I do not know when it will be published—it might be about to be published, or have been published—but the latest annual report by the Investigatory Powers Commissioner is out. Lord Justice Fulford’s report is a detailed analysis, and highlights where mistakes have been made or the law has not been applied.
That is how bulk data is regulated and acquired. The Bill does not apply to that, and none of those requests could involve bulk data applications.
Gavin Newlands
I beg to move amendment 16, in clause 4, page 5, line 16, at end insert—
“(3A) In any case which —
(a) falls within subsection (3)(a), and
(b) relates to data which comprises or includes excluded material (as defined by section 11 of the Police and Criminal Evidence Act 1984) or special procedure material (as defined by section 14 of the Police and Criminal Evidence Act 1984)
the judge may only make an order if satisfied that the relevant set of access conditions in Paragraphs 2 or 3 of Schedule 1 to the Police and Criminal Evidence Act 1984 would be fulfilled if the application had been brought under that Schedule.”
This amendment would that, in the case of excluded or special procedure material, a judge could only make an order if the relevant provisions on access conditions in the Police and Criminal Evidence Act 1984 were complied with.
The Chair
With this it will be convenient to discuss amendment 17, in clause 4, page 5, line 17, leave out subsections (4) to (6) and insert—
“(1) In any other case, the judge must be satisfied that there are reasonable grounds for believing that —
(a) the person against whom the order is sought has possession or control of all or part of the electronic data specified or described in the application for the order.
(b) all or part of the electronic data specified or described in the application for the order is likely to be of substantial value (whether or not by itself) to the proceedings or investigation mentioned in subsection (3)(a) or, as the case may be, to a terrorist investigation.
(c) is in the public interest for all or part of the electronic data specified or described in the application for the order to be produced or, as the case may be, accessed having regard to—
(i) the benefit likely to accrue, if the data is obtained, to the proceedings or investigation mentioned in subsection (3)(a) or, as the case may be, to a terrorist investigation, and
(ii) the circumstances under which the person against whom the order is sought has possession or control of any of the data.”
This follows on from Amendment 16 and brings the current subsections (4), (5) and (6) together in one subsection.
Gavin Newlands
Many of the arguments relating to these amendments have largely been made in the previous set of amendments about PACE. To clarify, from our point of view, journalists are currently given notice under PACE, which allows them to negotiate changes to their application in most cases. These amendments simply replicates what already exists and works well under PACE for the measures in the Bill. They would ensure that the evidential value test mirrors the current law on both terrorism and non-terrorism cases, in reference to the point made by the hon. Member for Bexhill and Battle. They would also ensure that confidential journalistic material is protected as under the current law for domestic applications. As has been said already, the Bill strips out the requirement that the information sought is likely to be relevant evidence and that other means of obtaining it have at least been considered. In a free, democratic society, seizing journalistic material should be a last resort.
Although there is a public interest test in clause 4, it sets a lower threshold than in PACE. Instead of the judge being required to determine whether granting access to information would be in the public interest, as in PACE, the judge must merely be satisfied that there are reasonable grounds to believe that it would be in the public interest. Separately, the police and security services have covert powers, primarily under the Investigatory Powers Act 2016. These powers are exercised through the issuing of a warrant by the Secretary of State and the Investigatory Powers Commissioner. Exceptionally, these powers have been used by the police to identify a source. Most infamously, the police used a journalist’s phone number to identify the police source who had leaked the “plebgate” story to The Sun. As a result of concern from the press about this, some safeguards have been added. However, neither the journalists nor the CSP is given notice of an application for an IPA warrant.
Nick Thomas-Symonds
I support what the hon. Gentleman is saying, and there is a later amendment for a notice. Is not the essential issue here that, as the Bill stands, the notice provision is not there for material that might not be confidential but is none the less extremely sensitive? It would be sensible to have the notice provision for that journalistic material as well.
Gavin Newlands
I could not agree more. The Investigatory Powers Act—I thought I left it behind a couple of years ago but I am on it again—provides for communications to be intercepted in the course of transmission; for communications data, but not content, to be produced to the police; and for the bulk surveillance of communications, with access to the content of specific communications that are highlighted in this process. Other than that, there is not a general right under the Act to apply for the content of stored communications, so there is no general ability under domestic law to obtain the content of journalistic communications other than through applying for a domestic production order.
Gavin Newlands
The Minister will be surprised to hear that I am not content. He said that the Bill is not designed to replicate PACE. We and others argue that it should. I look behind me, however, and realise that attempting to divide the Committee would be a futile gesture this morning, so I shall not press the amendments. However, if the Government do not bring forward protections that we feel appropriate—
Mr Wallace
Given that the hon. Gentleman wants to put the provision in line with POCA, is he saying that he would want to amend the Terrorism Act to put many of the Terrorism Act orders and requests on exactly the same line as the Proceeds of Crime Act 2002? That is a consequence of his view.
Gavin Newlands
We are talking about PACE, not POCA—I think that the Minister meant that, so I will answer accordingly. What he outlined is not before us today. If he introduces another Bill to make such changes to legislation, then perhaps on considering it we would argue the same points. That is for another day, but I take his point.
If the Government do not table appropriate amendments to provide protections, I suspect that we shall revisit the matter on Report, but for now I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 ordered to stand part of the Bill.
Clauses 5 to 7 ordered to stand part of the Bill.
Clause 8
Inclusion of non-disclosure requirement in order
Nick Thomas-Symonds
I beg to move amendment 12, in clause 8, page 8, line 42, at end insert—
“(3A) A judge shall only include a non-disclosure requirement for a period which, in the judge’s opinion, is necessary and proportionate in all the circumstances.”
This amendment would require a judge to include a non-disclosure requirement to cover a period which was only as long as he or she deemed necessary and proportionate.
This is another quite discrete point. Clause 8 empowers a judge making an overseas production order to include a non-disclosure requirement. Subsection (3) provides:
“An overseas production order that includes a non-disclosure requirement must specify or describe when the requirement is to expire.”
However, the clause does not include a necessity and proportionality test. Of course, it is essential that a non-disclosure requirement should not run for longer than reasonably necessary. Whereas under subsection (3) an order with a non-disclosure requirement would certainly have to specify or describe when it would expire, the judge would not be asked to consider the necessity for and proportionality of the order and its duration.
The purpose of the amendment is simply to probe the Minister for an indication of why there is no necessity and proportionality test, and whether he thinks any reassurance can be provided that those factors would be borne in mind in any non-disclosure order, which he will appreciate is a powerful order to make. It has quite profound consequences in these circumstances.
Huw Merriman
I will be brief because the hon. Gentleman said much of what I wish to say, but I wish to endorse it. The amendment would make the clause consistent with the Police and Criminal Evidence Act 1984 and apply it to all journalistic information, rather than just confidential information. I would be pleased if the Minister considered such a provision.
The point has been made—perhaps I can extend it—that such a measure would also save a lot of time and administration. If journalists are given an opportunity to negotiate with more notice, we will not find that matters reach the stage where it is too late. I am led to believe that the procedure works very much on a negotiation basis. On that basis, I think this measure is fair and consistent with domestic matters, and that it will also make for more administrative justice through our court process. I therefore support the sentiments behind the amendment, and I hope that the Minister will consider it.
I say gently to Opposition Members that, to a certain extent, and judging by what the Minister said earlier, we could perhaps have flexibility in this area and make the Bill work better if they do not seek to drive a coach and horses through the Bill with an amendment that is completely outside its scope and could potentially take it to pieces. I make those gentle points to those on both Front Benches.
Gavin Newlands
The hon. Member for Torfaen made his points with force and alacrity, and I shall not seek to detain the Committee by repeating them. However, in supporting the hon. Gentleman, I urge the Minister to listen not only to those on the Opposition Benches, but to those on his own Back Benches, to concede the principles of the amendment, and to table Government amendments on Report. If he does not do so, we will.
Mr Wallace
The Minister shook himself. Amendments 3, 10 and 20 would provide that when journalistic data is sought as part of an overseas production order, the journalist is put on notice of application. Clause 12(1) of the Bill requires that when confidential journalistic data is sought as part of an overseas production order, the respondent is put on notice. The respondent in this context would be the communication service provider from which law enforcement agencies or prosecutors are seeking content data.
The Government intended to ensure that where an application for an overseas production order was made there was a presumption that any person affected by the order, which would include the journalist themselves, was also put on notice. That was to be included in the relevant court rules, as is the case with domestic production orders, including those made under PACE, the Terrorism Act and POCA.
I am pleased to see that the amendments tabled by the hon. Member for Torfaen recognise that, should all journalists be put on notice when an overseas production order is served in respect of an application that relates to their data, certain exemptions must be in place. It is important that the requirement to provide notice for an overseas production order is not absolute. The difference between the Bill and PACE is that PACE production orders are served directly on the respondent themselves—that is, the journalist. Where PACE requires notice to be given to the respondent, notice has been given to someone who will of course be made aware of the order when it is served, as they are the person who will be required to comply with it. In practice, that will be the person handing over the data to law enforcement agencies.
However, in the Bill the orders are served directly on the CSP that owns and controls the data. Giving notice to a third party—the journalist, who is not required to act on the order—should not stand in the way of issuing an overseas production order where there are good reasons for notice not to be given. I believe that the judge is well placed to determine whether the journalist should be notified, and the circumstances in which it will not be appropriate for that to be the case.
The exemptions set out in amendment 10 are that
“the applicant cannot identify or contact the journalist…it would prejudice the investigation if the journalist were present…it would prejudice the investigation to adjourn or postpone the application so as to allow the journalist to attend, or…the journalist has waived the opportunity to attend.”
Those exemptions mirror what is currently in place in court rules for domestic production orders through PACE, and they seem a sensible approach. For example, we do not want to oblige law enforcement agencies into notifying an ISIS blogger or journalist when clearly that could prejudice the investigation. Those exemptions are fundamental to retaining a robust and sensible approach to evidence.
I thank Members for their detailed arguments, and for the time that they have taken to consider the protection of journalists. I reiterate that both the notice requirements and the important exceptions that underpin them will be provided for, as they are currently, in court rules. However, I am happy to consider whether they can be provided for in the Bill. I am happy to discuss that with hon. Members as we proceed to Report, if they will withdraw the amendment.
Crime (Overseas Production Orders) Bill [Lords]
Gavin Newlands ExcerptsMonday 3rd December 2018
(5 years, 5 months ago)
Commons ChamberRead Full debate Crime (Overseas Production Orders) Act 2019 View all Crime (Overseas Production Orders) Act 2019 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 134(a) Amendment for Third Reading (PDF) - (15 Nov 2018)
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
The Scottish National party welcomes the aims of the Bill, with some caveats, and the Scottish Government believe that investigations and proceedings relating to serious offences in Scotland could benefit from the use of overseas production orders as a quicker and more streamlined process for obtaining electronic data. Notwithstanding the Minister’s point, which I am sure we will discuss further in Committee, we also welcome their lordships’ amendment that provides safeguards against UK service providers being required to produce evidence in cases in which the death penalty may be imposed.
However, we are concerned about the lack of proper safeguards for journalistic material, and I hope that we will be able to strengthen the measures in that important area in Committee. Although I welcome the fact that an order must be for specific, targeted information, the fact that it will in all likelihood be able to access bulk datasets to retrieve that information is disappointing and goes against the strong points made by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) during the passage of the Investigatory Powers Act 2016. I shall return to those issues a little later.
The ability to apply for an overseas production order through the domestic courts will make the process for gaining cross-border access to electronic data faster and more reliable than the current processes, which rely on mutual legal assistance treaties. MLAs have been criticised for being too bureaucratic and time-consuming. The UK’s deputy national security adviser on intelligence, security and resilience to 2018, Paddy McGuinness—not the one we are all familiar with—explained in an interview how the current process causes difficulties for UK investigators and prosecutors. He stated:
“It does not make sense that criminals plotting a major drug deal, a murder, a kidnap, trafficking people or sexually abusing a child in the UK can have their communications intercepted if they communicate via text message, but if they use a US company’s services their data should be out of reach of UK law enforcement.”
Those of us who sat through the Committee stage of the Investigatory Powers Bill will never forget the fact that electronic information is becoming increasingly important to the investigation and prosecution of criminal offences, including terrorism. The companies that provide services that generate or store this data, such as Facebook, Twitter and Google, are often located outside our jurisdiction. This puts the data beyond the reach of existing domestic court orders, which either cannot be made when the data is not in or accessible from the UK, or cannot be served extra-territorially. According to Access Now, a digital rights campaign group, there has recently been a “huge growth” in MLA requests to access online records such as subscriber details, email content, metadata and social media from companies such as Google, Facebook, Yahoo and Twitter, which treat the vast majority of their data as being located in California and therefore subject to Californian jurisdiction.
According to the Home Office’s own figures, as of 2016—the figures are now out of date—the UK was party to 40 bilateral MLA agreements. As we have heard, the MLA process can be slow, requiring significant Government-to-Government liaison. This can cause lengthy delays, which can cause problems for investigations and prosecutions. Lord David Anderson, the then independent reviewer of terrorism legislation, has spoken of the severe delays in the process and recommended that the Government should seek to address deficiencies in access to material from overseas service providers and
“take a lead in developing and negotiating a new international framework for data-sharing among like-minded democratic nations.”
Detectives investigating serious offences, including murder, have commented that it is taking an “inordinate amount of time” to access evidence from Facebook. Cressida Dick has said that UK police forces have faced a “very protracted procedure” in cases where they have had to access information from organisations such as Facebook. Just recently, she stated:
“I absolutely think that in certain instances...law enforcement in the UK ought to have vital evidence which might bring someone to justice.”
The delays that detectives currently face are unacceptable and it is clear that the system needs to be improved. Lord Anderson spoke in his summing up about the international frameworks, and I would like the Minister to explain further why, Brexit aside, he was not interested in participating in the European protection order.
I move on to the amendment made in the Lords to clause 1, with which we wholeheartedly agree. It provides that in any agreement on overseas production orders and the provision of electronic data under the terms of the Bill, assurances must be obtained from the other country concerned that the death penalty will not be applied. Article 2 of the European convention on human rights—together with protocol 139, to which the UK is a signatory—provides for the total abolition of the death penalty. It is therefore regrettable that the Government tried to resist this amendment in the other place. We—and, I am sure, Labour Members—will resist any Government attempt to draw back from this position in Committee.
While we broadly welcome the Bill, we are concerned about lack of safeguards for journalistic material. We believe that the provisions in the Bill are inadequate in protecting confidential journalistic material. This could threaten the pursuit of journalistic inquiry and undermine the democratic institution of a free press. We are not alone in this, as the BBC has also raised concerns.
Clause 12 provides for a journalist to be given notice of and made a party to an application that pertains to their confidential journalistic material, but this does not apply to non-confidential but none the less sensitive journalistic material, which is at odds with the domestic situation as outlined in the Police and Criminal Evidence Act 1984. The system proposed in the Bill will allow for a significantly reduced opportunity for journalists to engage in arguments about what is, and is not, suitable for disclosure, removing the opportunity for a journalist to make submissions on the issues that this gives rise to in the context of their work. Where on-notice applications are permitted in cases of confidential journalistic material, the Bill is currently silent as to whether or how any submissions will be taken into account by the judge. No further information is outlined on what this process would involve or how much information the journalist would be able to access; nor is it clear that sufficient information would be disclosed to enable them to respond appropriately. Additionally, it is unclear whether any advice or support would be provided to a journalist in those circumstances. Under clause 13, a journalist cannot inform anyone of the application or its contents, and no provision is made for this information to be disclosed to a legal adviser or representative.
The BBC has some further asks. It wants the Bill to require that notice is given in all applications for journalistic material, not just in those involving confidential material; to ensure that the evidential value test mirrors the current law in both terrorism and non-terrorism cases; to ensure that confidential journalistic material is protected, as under the current law for domestic applications; and to ensure that the Secretary of State can enter into reciprocal arrangements only with countries that provide at least as much protection. I suspect that we will be looking at this further in Committee.
The other area that we will be seeking clarity on during the Bill’s later stages is the potential use of bulk datasets. As I have said, the SNP has argued strongly against the retention of bulk data sets, the vast majority of which are harvested from mainly innocent citizens. We argued that it is incumbent on the Government to prove that there is an operational case and that the powers are necessary and to ensure that the safeguards are rigorous. It would therefore be rather remiss of us to allow legislation to pass without the requisite safeguards around the accessing of such data.
To conclude, the MLA treaty system is not working in the modern age. Vast amounts of electronic data goes through Facebook, Twitter and other organisations, and a quicker and more streamlined process for obtaining data is required to investigate serious offences efficiently in the modern world. The ability to apply for an overseas production order through the domestic courts would make the process for getting cross-border access to electronic data faster and more reliable than currently. The Minister was uncharacteristically generous—I mean the Government, not him personally—in working with the Opposition when the Counter-Terrorism and Border Security Bill was in Committee, and I hope that will be repeated with this Bill so that we can move on together.