Reports into Investigatory Powers — House of Commons, 2015-06-25
Topic: Law and Crime
Joanna Catherine Cherry (Scottish National Party, Centre-left): I share that concern and note the comments of the English Bar Council and the English Law Society, and I know that the Scottish Bar, of which I am a member, and the Law Society of Scotland also share concerns that legal professional privilege ought not to be interfered with. It is important to note that insisting on proper protection for legal professional privilege is not special pleading on behalf of lawyers; the privilege is that of the client, rather than the lawyer, and the underlying rationale is the public interest in ensuring the proper administration of justice. I share the concerns of legal bodies in that respect I will now to turn to the Scottish angle on these matters. When I spoke in this House on the occasion of the publication of the Anderson report, I asked the Home Secretary to commit fully to engaging with her Scottish Government counterparts in so far as there will be measures in the new Bill that impinge on the devolved competences. Her response was that national security is a reserved matter That is simply not good enough. The Bill will touch on issues beyond national security, including particularly serious crime. Crime is a devolved matter and the new Bill will clearly include measures directed against the investigation of serious crime. I and others have already mentioned child sexual exploitation as an important example of that. Much of what is to be covered in the new Bill may impinge on areas of Scots law that are clearly devolved and under the jurisdiction of the Scottish Government or Scotland’s law enforcement agencies, including the Crown Office and Procurator Fiscal Service I would like to give the Home Secretary at least two examples of proposals, which, if taken forward, would have implications for Scottish Ministers and Scottish legislation. The first is a return to judicial authorisation of interception warrants on serious crime grounds. At present, interception for the purpose of preventing or detecting serious crime in Scotland is authorised by Scottish Ministers. On the basis of David Anderson’s recommendations, that will, in future, be in the hands of members of the Scottish judiciary A second proposal that may have implications for Scotland is the recommendation that the three existing commissioners for interception, surveillance and intelligence services be replaced with a single independent surveillance and intelligence commission. A number of provisions in the Regulation of Investigatory Powers (Scotland) Act 2000 place duties on the Office of Surveillance Commissioners in respect of surveillance and the use of covert human intelligence sources. Any change in that area would almost certainly trigger the requirement for a legislative consent motion from the Scottish Parliament. Accordingly, I hope that the Home Secretary will stand respectfully corrected and now accept that there is a need for her to commit to engaging fully with the Scottish Government, insofar as any legislation introduced later this year and at the beginning of the next year will impinge on the devolved competences I mentioned that, although the Scottish National party welcomes the Anderson report, there are areas of concern about its contents. We are particularly disappointed at the suggestion that bulk collection of external communications should continue subject only to what are described as "additional safeguards" and at the recommendation that existing compulsory data retention capabilities under the Data Retention and Investigatory Powers Act 2014 be maintained. The Anderson report offers six agency case studies in an attempt at justifying mass interception. However, as others, including Liberty, have noted, the information in these case studies is vague and limited, so it is impossible to assess whether the security outcomes could have been achieved just as easily by using the wealth of targeted and operation-led intrusive surveillance powers at the agencies’ disposal The Scottish National party does not dispute the use and value of targeted and proportional intrusive surveillance. We believe, however, that the mass speculative interception of communications and data retention is unlawful, unnecessary and disproportionate. We are pleased to see that Liberty is currently challenging the lawfulness of mass interception in the European Court of Human Rights and representing Members of this House in their legal challenge to DRIPA.