I do not wish to quibble with the right hon. and learned Gentleman’s conclusion, but unfortunately the rest of us have not been favoured with the basis on which he and his Committee reached it. I am yet to be convinced that the “economic wellbeing” ground is a stand-alone ground that cannot be subsumed within “national security”. If the Government can convince me otherwise, or want to try, I will listen, but I have yet to be convinced, despite having sat through many days of the Bill Committee.
Another problem with the grounds relates to the lack of any “reasonable suspicion” threshold. This recurs throughout the Bill. Our amendments would insert such a requirement. At present, intrusive powers can be authorised to prevent and detect serious crime and, in the case of communications data, even just to collect tax, prevent disorder or in the interests of public safety. These general purposes, however, are left wide open to broad interpretation and abuse if one does not also require a threshold of suspicion. A requirement of reasonable suspicion, when one invokes the purpose of preventing and detecting serous crime, would have the benefit of preventing the abusive surveillance of campaigners, unionists and victims by undercover police; police surveillance of journalists’ lawful activities; and surveillance by the agencies of law-abiding non-governmental organisations and MPs. This is not fanciful. We have seen law-abiding NGOs and MPs having their correspondence and activities interfered with in recent times, so these are not just theoretical examples.
The “reasonable suspicion” threshold was recently held to be necessary by the European Court of Human Rights in a case concerning the Russian interception regime, Zakharov v. Russia, with which many hon. Members will be familiar. The Solicitor General will try to make a distinction—if we had time, we could argue about that—but there is a widely held view that the standard set by the ECHR in that case is not met by the grounds in clause 18. I therefore urge fellow hon. Members to support our amendment to clause 18 to ensure that the United Kingdom’s investigatory powers regime meets international human rights standards.
It will be clear from what I have said already that the SNP very much shares Labour’s concerns about the monitoring of legitimate trade union activity. I understand
that the Home Secretary has acknowledged those concerns and given some sort of assurance to the shadow Home Secretary. However, like Labour, the SNP will require an amendment to make that absolutely clear on the face of the Bill. If Labour Members want to push their amendment to a vote this evening, we will support it.
9.45 pm
I am conscious of the time, so I want next to look briefly at judicial review. We have talked about that quite a bit already today. I accept that the Government’s manuscript amendment is an improvement, but in my respectful argument it does not go far enough, and that is because of something I said earlier today. All of us in this Chamber who have practised law and advised clients about judicial review know that key to doing so is knowing what the reasons were for the original decision, and there is absolutely nothing in the Bill requiring the Secretary of State to give any reasons for her or his decision to issue a warrant. Interestingly, clause 21(4) requires the judicial commissioner to give his or her reasons, but the Secretary of State is not required to give reasons. As long as it remains a judicial review standard, I do not see what it is that the judicial commissioner is reviewing, in the absence of reasons for the original decision.
The right hon. Member for Haltemprice and Howden (Mr Davis) made the point earlier that the Home Secretary signs many of these warrants—sometimes up to 10 a day. I feel for her in that she should have to issue reasons for them, but the fact that we are talking about judicial review of a decision for which reasons are not required underlines the inadequacy of what is currently proposed.
Briefly, clause 24 relates to parliamentarians and their protection. We heard an eloquent speech from the hon. Member for Gainsborough (Sir Edward Leigh) about his suggestion that the Speaker should oversee the process in some way. I have already commented that, as envisaged under the amendments tabled by the Joint Committee on Human Rights, it should be the Presiding Officers in the case of the Scottish, Welsh and Northern Irish Parliaments. The SNP suggest, in our new clause 23, that a targeted examination warrant relating to a parliamentarian should bypass the politicians completely and be granted only by a judicial commissioner, and we have tabled similar amendments to part 5.
The reason for that is to preserve the Wilson doctrine and depoliticise the process. It is illogical to suggest that an adequate replacement to the previous, complete prohibition on surveillance of politicians is to have a clause that expressly allows surveillance of politicians, only requiring the Secretary of State to consult the Prime Minister prior to authorising interception or hacking. It completely undermines the Wilson doctrine, therefore we cannot support it and would urge the Government to look at our suggestion that it should be a judicial commissioner who authorises warrants to interfere with the communications and the equipment of parliamentarians.
Before I sit down, let me turn briefly to legal professional privilege. I add my voice to the concerns already expressed about the inadequacy of what is in the Bill. It is not just the Bar Council and the Law Society of England and Wales that are worried about this; the Law Society of Scotland and the Faculty of Advocates have also made representations. Government Members may curl their lips, but legal professional privilege is not there to
protect lawyers, just as parliamentary privilege is not there to protect politicians. It is there to protect people who consult lawyers, and those people are our constituents. There is a longstanding convention in England and Scotland that legal communications are privileged, save for the iniquity exception. That is not reflected in the Bill and it needs to be.
There are many more amendments that I would like to speak to, but I am not going to, in recognition of the fact that others deserve time to speak. I would simply say again that the Scottish National party considers the time afforded to debate the many amendments tabled to this serious and far-reaching Bill to be wholly inadequate, and there are many people beyond this Chamber who also take that view.