I beg to move,
That this House has considered reports into investigatory powers.
When I made my statement on the publication of the Anderson report two weeks ago, several right hon. and hon. Members requested a full debate in this House. As I said then, and as I have said many times in the past, these are serious and sensitive matters. They require careful deliberation of the evidence, to ensure that the legal and privacy framework governing the use of investigatory powers is properly accountable and as robust as possible. These principles—accountability, transparency and a robust legal framework—are underscored by the report by David Anderson, QC. His report was preceded by the Intelligence and Security Committee’s “Privacy and Security” report, which was published in March and which examined the appropriate balance between the need for security and respect for privacy.
Today, my right hon. Friend the Prime Minister has laid two further reports before the House: the annual report of the Chief Surveillance Commissioner and the annual report of the Intelligence Services Commissioner. Later this summer, a panel co-ordinated by the Royal United Services Institute and established by the former Deputy Prime Minister, the right hon. Member for Sheffield, Hallam (Mr Clegg), will report on the legality, effectiveness and privacy implications of the UK’s surveillance programmes and assess how law enforcement and intelligence capability can be maintained in the face of technological change. Together, those reports represent substantial independent review of the frameworks and oversight governing the use of investigatory powers.
In addition, last year, my right hon. Friend the Prime Minister appointed Sir Nigel Sheinwald as his data envoy. Sir Nigel has submitted his report to my right hon. Friend and although, for obvious reasons of sensitivity, it cannot be published, a summary has been placed on the Cabinet Office website. Sir Nigel focused both on short-term and longer-term co-operation, and on the need to create an international framework between democratic countries. That would ensure that, where necessary and proportionate, data can be accessed even when they are held outside the requesting country’s jurisdiction.
As I have said before, and as the Anderson and other reports make clear, the use of investigatory powers by the police and the security and intelligence agencies is essential for national security and for the fight against crime. If the police are to investigate serious crimes such as murder and rape, if our law enforcement agencies are to track down criminals that operate online and if we are to protect the vulnerable and stop those who mean to do us harm, the police and the security and intelligence agencies need access to these powers when appropriate.
As this morning’s figures show, the threat from terrorism is serious and it is growing. In 2014, 289 people were arrested for terrorism-related offences, an increase of 30% compared with the previous year. We know that investigatory powers are important for tackling terrorism, and that communications data have played a significant role in every Security Service counter-terrorism operation over the last decade. Since 2010, the majority of MI5’s top-priority UK counter-terrorism investigations have used intercept capabilities in some form to identify, understand or disrupt plots seeking to harm the UK and its citizens.
Although the Anderson report and others recognise the necessity of investigatory powers, just as important is having the right regulatory framework, the right oversight and the right authorisation arrangements governing their use. As David Anderson has said, he regards it as imperative that the use of sensitive powers is overseen and fully declared under arrangements set by Parliament. It is therefore entirely right that Parliament should have the opportunity to debate those arrangements. Just as the Anderson review was undertaken with cross-party support, I am committed to ensuring that we take forward these arrangements on the same basis.
I want to turn first to David Anderson’s report. It is, as I have said before, a comprehensive report, covering the full range of sensitive intelligence capabilities, and there are 124 recommendations. I hope that right hon. and hon. Members have now had the opportunity to read it for themselves, and reflect on what David Anderson has said. David Anderson makes it clear that there is a need for investigatory powers—within an appropriate framework—in the fight against terrorism and serious crime. He notes the significance of communications data in prosecutions and that sensitive interception powers are not used routinely. He said:
“Interception is therefore used only in the most serious cases... But interception can still be of vital importance for intelligence, for disruption, and for the detection and investigation of crime.”
He also agrees with the Intelligence and Security Committee and others on the importance of bulk data, saying that
“its utility, particularly in fighting terrorism in the years since the London bombings of 2005, has been made clear to me.”
But David Anderson is also firmly of the view that the system needs updating, and he supports the need for a new legislative framework, noting that the Regulation of Investigatory Powers Act 2000 was enacted 15 years ago. He makes a number of recommendations regarding transparency, oversight and authorisation.
On the legislative framework, David Anderson makes the point that legislation is currently spread over several different Acts, and recommends bringing it together in a single law. On oversight, he recommends the merging of the three oversight commissioners—the Interception of Communications Commissioner’s Office, the Office of Surveillance Commissioners and the Intelligence Services Commissioner— into a new single independent surveillance and intelligence commission. On authorisation, Anderson comes down on the side of judicial authorisation of warrantry, although the ISC takes a different view and has endorsed the existing system. Anderson points out the care with which Secretaries of State approach the task and makes it clear that European Court of Human Rights jurisprudence does not require a system of judicial authorisation, but he is of course mindful that requirements may change in the future.
Shortly after the right hon. Lady spoke in the House two weeks ago, The Guardian reported that Downing Street was indicating that the Prime Minister is unlikely to agree to David Anderson’s recommendation for a judicial authorisation of warrants. Does that mean that she is effectively ruling out judicial authorisation of warrants at this early stage?
Perhaps the hon. and learned Lady will let me read the very next sentence in my speech, which says that, on these recommendations, the Government have not yet reached a decision. These are important matters and we must consider them carefully. Today’s debate will inform our view.
The ISC’s review into privacy and security also supports the agencies’ need for investigatory powers, but recommends that the legal framework needs updating and calls for increased transparency, strengthened safeguards and improved oversight. The review involved a detailed investigation into the capabilities of the intelligence agencies and contained an unprecedented amount of information about how they are used and the legal framework that regulates their use.
The Committee found that all the surveillance activities of the intelligence agencies are lawful and proportionate. It concluded that the agencies do not seek to circumvent UK law—including the Human Rights Act 1998—and do not have the resources, capability, or the desire to conduct mass surveillance. It commended the agencies for the care and attention they give to complying with the law.
None the less, it concluded that the current legal framework is “unnecessarily complex” and should be replaced with a single Act of Parliament, governing everything the agencies do to increase transparency. Going further than David Anderson, the ISC’s recommendations include replacing the legislation that underpins the agencies as well as the legislation relating to interception and communications data. Its recommendations include allowing Secretaries of State to disclose the existence of warrants where that can be done without damage to national security; increased checks, scrutiny and use of the warrant process; and more resources—and more checking of the agencies’ activities—by the Intelligence Services Commissioner and the Interception of Communications Commissioner. As with David Anderson’s report, debate on these issues will inform the Government’s view.
My right hon. Friend is making an important point. On informing the Government’s view, I welcome her concession that the Government will think carefully about the Anderson review on judicial oversight. She also mentioned earlier the importance of cross-party working on parliamentary oversight, where appropriate. Will she undertake to include the relevant Select Committees of this House in that cross-party approach?
First, may I congratulate my hon. Friend on his election to a chairmanship of one of those Select Committees? I suspect that he is thinking of the Justice Committee. Of course it is not for the Government to indicate to Select Committees what business they should be undertaking, but I have every expectation that relevant Select Committees will wish to look at this matter. The Government will take all representations and consider them in the round in their response to the reports.
In addition, as I mentioned earlier, the Prime Minister has today published the annual reports of the Chief Surveillance Commissioner and the Intelligence Services Commissioner. I commend both of those reports to the House. Both demonstrate the value of rigorous independent oversight and provide reassurance on the work of the agencies and the powers that they oversee. I thank the Chief Surveillance Commissioner, the Intelligence Services Commissioner and their staff for their excellent work, their dedication and public service.
I appreciate that Members of the House will not yet have had time to study the reports in detail, but I would like to draw their attention to the findings of the Intelligence Services Commissioner, who is clear about the seriousness with which these powers and the granting of warrants are approached by the agencies and Government. He says:
“The agencies take great care to seek other less intrusive means before undertaking this level of intrusion and often consult their lawyers to ensure the legality of their submission.”
He goes on to say that great care is carried out by the warranty units at the Foreign Office, Home Office and Northern Ireland Office, which
“will question the agencies concerning the use and applicability of the suggested activity.”
The final check in the process is the oversight provided by a Secretary of State, who can refuse a warrant and who he says
“are aware that they are ultimately accountable for the operation.”
As I have already said, the Government have not yet taken firm decisions on particular recommendations in David Anderson’s report, or indeed on any of the other reports we will discuss today. There are many voices both inside and outside the House who have important views that need to be heard. We must consult those, including the police, the security and intelligence agencies, law enforcement agencies, and the telecommunications companies, as they are most directly affected. We also need to hear what Members of this House have to say.
I am clear that, whatever legal and privacy framework we propose, it will need to be agile and capable of responding to urgent cases. It will need to be clear and accountable, to be capable of commanding public confidence, and to ensure that sensitive powers are available in a way that will stand the test of time.
The reports that we are discussing today provide a firm basis for consultation, and today’s debate—the second time this House has discussed this matter in two weeks— will be an important contribution to that process. As I have said previously, the operation and regulation of the investigatory powers used by the police and the security and intelligence agencies is a matter of great importance to the security of this country and an issue of great interest to many Members.
The Government are committed to introducing a Bill on investigatory powers early next year, so that it can receive Royal Assent before the sunset clause in the Data Retention and Investigatory Powers Act comes into effect at the end of 2016. In order to meet that timetable and allow the full parliamentary scrutiny, we intend to bring forward a draft Bill for consideration in the autumn, which will be subject to full pre-legislative scrutiny, including by a Joint Committee of both Houses.
As we move forward in our discussions, it is important that we remind ourselves about the very serious nature of what we are debating, because these powers are about protecting and saving people’s lives. In any debate about the right balance between security and privacy, it is important that we remember the full context of the threats we face. They include the threat from terrorism—both from overseas and home-grown in the UK. Since the attacks on 7 July 2005, the Security Service believes that around 40 terrorist plots have been disrupted. Around 700 people have gone from the UK to Syria and Iraq to fight or support terrorist organisations—a number of them to join ISIL or Daesh—and around half have returned. ISIL has made it clear that it wants to strike us here in Europe, and we know that it uses sophisticated propaganda and modern technology to spread hatred and in some cases advocate or facilitate acts of terrorism.
We also face other threats from organised criminals and the proliferation of cybercrimes such as child sexual exploitation, and threats from hostile foreign states and from military and industrial espionage.
Without the use of investigatory powers, it would be difficult to investigate, prosecute and prevent not only terrorist-related activity but crimes such as murder, rape, human trafficking, child sexual exploitation, cybercrime and kidnap. We know that communications data are used in 95% of serious and organised crime investigations handled by the Crown Prosecution Service. Similarly, intercept has played a significant role in investigating crime and preventing terrorism. In 2014, 2,795 interception warrants were issued. Of those, the majority—68%—were issued for serious crime, 31% for national security and 1% for a combination of serious crime and national security.
In the face of such threats, the Government would be negligent if we did not ensure that those whose job it is to keep us safe have the powers, support and capabilities they need. I am committed to ensuring that. However, security and privacy are not, as I said before, a zero-sum game. We can only enjoy our privacy if we have our security, just as we can only be free to live our lives as we wish, enjoy the many benefits that this country has to offer and go about our lives unimpeded and free from threats because security underpins our way of life.
Too often in the debate about investigatory powers, we are drawn into arguments in which privacy is prioritised at the expense of security or security at the expense of privacy, but it is possible to have a proper balance between the two. We must consider these issues in the round. Through parliamentary scrutiny, we must ensure that we have a framework set by Parliament that delivers as it is intended to and that can command public confidence. That framework must be underpinned by thoughtful and constructive debate, and I look forward to hearing what right hon. and hon. Members have to say in what I believe will be a well-informed and interesting debate.
I thank the Home Secretary for her thoughtful speech and for scheduling the debate so swiftly after the publication of David Anderson’s report. I called for the debate in response to the statement two weeks ago and it has been swiftly delivered.
I should also apologise to the House, as I already have to the Home Secretary and to you, Mr Speaker, for the fact that I cannot be here for the closing speeches. It is my daughter’s school graduation, so I hope the House will forgive me for being there instead.
This will be a good debate and it is an opportunity to debate the right legal framework to protect our liberty and security in the digital age. I join the Home Secretary in paying tribute to the quiet heroism of our intelligence services, agents and counter-terror police. Their work is necessarily secret and their successes are rarely reported, but their success is measured, bluntly, by a lack of column inches and TV headlines. We are rightly all proud of them.
There is also no doubt that as the world becomes increasingly connected and as we increasingly rely on smartphones, tablets and other technology to communicate and organise our lives, that has repercussions for the fight against terrorism and serious and organised crime. David Anderson’s report contains the startling fact that in 1975 there were 1 billion connected places, that by 2010 there were 5 billion connected people and that by 2020 there will be 50 billion connected devices.
Our lives are increasingly online, and with that opportunity come great challenges. For example, we know that Twitter is a lot of fun for many people, including many Members of this House—although, perhaps, not yet the Home Secretary—but it has also been used to connect extremists and recruiters with young people in the United Kingdom, including the young girls who left for Syria from Bethnal Green earlier this year. New devices, mail services and apps are used to help us all keep in touch, build amazing new businesses and organise our lives, but also by some to commit crimes and abuse. Online crime has risen exponentially and we have also seen awful cases of online child abuse that we are still failing to address as a country.
We have also seen growing problems with organised cyber-attacks for major companies, infrastructure and the Government. The operations of the police and intelligence agencies need to be able to keep up with these new forms of crime and national security threats, but at the same time the checks and balances, safeguards and oversight that are needed must keep up with new technology. We have a long and proud tradition in Britain of having those checks, balances and safeguards for our liberty and our privacy. We must ensure that action by the state is proportionate, so those checks and balances must keep up with the fast-moving changing technology.
We have argued for some time that the legal framework is out of date. The Regulation of Investigatory Powers Act is, in David Anderson’s words,
“incomprehensible to all but a tiny band of initiates”
and in the long run that means that it is “intolerable”. Its interaction with previous legislation, including the Telecommunications Act 1984, is baffling, too, and even after being briefed on some of the work that the agencies do and having studied the legislation over seven years—often with a wet towel wrapped around my head, which was the only thing that enabled me to get my head around it even temporarily—I still find it hard to be clear about what is possible and what is not under the law as it stands and about the extent of existing safeguards. That is unsustainable as a framework for legitimacy for the vital work the agencies do, which is why we have called for some time for a review of RIPA, why we argued for it in the debates last summer and why we have welcomed the Government’s agreement to ask David Anderson to produce this report.
The report is extremely thorough and ranges from ideas of privacy in ancient Babylonia to what Facebook’s Mark Zuckerberg, the founder of a rather different kind of empire, thinks of the topic. It provides us with an opportunity for Parliament, civil society, the intelligence community, law enforcement, communication providers and, crucially, the public properly to consider the powers and safeguards we need.
As David Anderson recently said:
“The threat that I see of not accepting my recommendations, or recommendations along these lines is that people become disenchanted with the whole business of intelligence gathering. They believe some of the wilder allegations…that the state is reading into people’s emails the whole time when patently it isn’t. If this sense of disillusionment and disenchantment is perpetuated and spreads further then I think both law enforcement and intelligence lose the public confidence that they actually need if they are going to do an effective job.”
My right hon. Friend is making a good and comprehensive speech. Is it not appropriate that David Anderson’s report is entitled “A Question of Trust”? Surely that is one of the most important things in bringing the public with us on this issue.
My hon. Friend is exactly right. There is strong support for the work of the intelligence agencies and the work they do in Britain, which has historically always been the case, but we should never take that for granted. It would not be fair on the intelligence agencies to take it for granted, so maintaining that sense of trust and confidence across the whole of society and not simply across the majority of people is extremely important for the work that they do. If we are to protect both our liberty and security in a democracy, we need to achieve consent for and understanding of the law and it is not just those who are concerned about surveillance who value greater clarity. It is also an essential mission of our intelligence agencies as part of defending democracy and protecting liberty and security.
The Home Secretary has been clear that there is no doubt that investigatory powers are vital in confronting terrorism, child abuse and other serious and organised crime. During the Home Secretary’s statement two weeks ago, I mentioned the awful case cited in David Anderson’s report in which communications data were used, rightly, to stop the abuse of three children who were all less than four years old. There are other cases. For example, Operation Overt dealt with the largest and most serious terrorist plot we have ever faced. Between 2008 and 2010, 10 individuals were convicted of plotting to blow up multiple transatlantic airliners. A key part of the evidence that brought the plotters to justice was coded conversations by email between the conspirators and extremists abroad in which they discussed the preparation for their attacks and the selection of targets.
It is clear from the review and other evidence that the powers passed through the Data Retention and Investigatory Powers Act 2014 last summer are essential and must be renewed, and will need to be renewed in good time before the sunset clause at the end of next year. It is also right, however, that we ensure that the legal framework that governs them is updated so that it properly reflects the needs of security and the need for safeguards.
In 2012, the Home Secretary made proposals in the draft Communications Data Bill that would have gone much further than the current legislation. I argued at the time that there were serious problems with the Bill, because it put too much power in the hands of the Home Secretary. The Joint Committee set up to scrutinise the draft Bill also, rightly, raised substantial concerns. David Anderson’s report makes it clear that he does not think that the draft Bill was the right approach. He noted that the first clause was “excessively broad”. The important question of IP addresses, which was encompassed in the draft Bill, has now been dealt with in other legislation. On weblogs, which the Home Office said at the time it wanted to pursue, David Anderson concluded that he
“was not presented with a detailed or unified case”
on the viability, practicalities or legal considerations.
On perhaps the most significant and the most controversial measure in the draft Bill—requiring internet service providers to hold huge amounts of third-party data—he commented:
“I did not get the sense that this was judged to be the priority that it once was, even within law enforcement”,
and he concluded:
“Accordingly…there should be no question of progressing this element of the old draft Bill until such time as a compelling operational case has been made, there has been full consultation with CSPs and the various legal and technical issues have been fully bottomed out. None of those conditions appears to me to be currently satisfied.”
Experts have also expressed substantial concerns about encryption and the cost and proportionality of the proposals.
Where David Anderson and the agencies confirm that there is a problem is in ensuring that companies whose headquarters are overseas comply with UK law, particularly for data and communications that involve those who are living and operating in the UK and those who pose threats to the UK. The Home Secretary referred to the report by Nigel Sheinwald, whose work is vital because, as the agencies and the Home Secretary recognise, UK law is only part of the answer; legal and diplomatic arrangements with other countries are immensely important. In fact, there is a growing range of views that the proposals in the draft Communications Data Bill were not the right way to deal with that genuine and significant problem in relation to companies based overseas.
On that basis, I ask the Home Secretary to confirm that she has dropped the original draft Communications Data Bill and is starting with a fresh approach. I think it would help our debate in this place and the development of future proposals that should balance the appropriate powers and the appropriate safeguards. Will she confirm that that draft Bill has been dropped and a new approach will be taken?
After the Joint Committee that scrutinised that draft Bill had done its work, we made it clear that we would take on board in principle the various recommendations the Committee made. Obviously, David Anderson’s report refers to some of the issues in the draft Communications Data Bill, so we will have to look at that in the context of subsequent proposals. We were clear that we would accept all the principles that that Committee set out, including that the original draft Communications Data Bill, which was an attempt to future-proof our legislation, was too wide ranging.
I thank the Home Secretary for that reassurance that the Government agree that the old draft Bill was too wide ranging. We look forward to the replacement proposals and hope they will meet the assessment test set out by David Anderson, whose report is pretty comprehensive and well judged on these matters.
I also warmly welcome David Anderson’s recommendations for a fundamental overhaul of the commissioner system and the establishment of a new body, the independent surveillance and intelligence commission. The current commissioner system, although undoubtedly staffed by excellent people who have taken their roles forward, is too low profile and not substantial enough in performing a vital oversight role. It is hard for the public to assess where oversight properly lies. When one considers that we regulate our TV channels in a more high-profile and systematic way than our intelligence agencies, it is clear that reform is needed.
The new body would have supervisory responsibility and aim to build public trust. I would like it also to have a role in working with the Home Secretary on a suitable process for transparency, where that is possible in line with operational requirements, about both the law and our country’s capability. David Anderson’s report calls for greater public avowal and transparency about capabilities and legal powers. While everyone understands that many national security operations need to be secret to be effective, I know the Home Secretary will consider that recommendation closely, because sufficient transparency is of course needed if we in Parliament are to be able to take responsible decisions and get the legislation right.
The report recommends transforming the system of authorisation for interception warrants. The proposals on judicial authorisation are among the most significant reforms to the framework that David Anderson proposes. There is precedent: a system of judicial approval by commissioners exists for the police in relation to property interference, intrusive surveillance and long-term undercover operations. Also, as the report notes, the UK is an outlier among the “Five Eyes” states—the others are Australia, Canada, New Zealand and the USA—in not having prior judicial authorisation of interceptions of communications.
Importantly for the safety and security of our country, such a provision could go some way to solving one of the most significant challenges our agencies face: getting co-operation from communications companies based in the United States. In his report, David Anderson states:
“One major company went so far as to suggest that if the UK introduced judicial authorisation, more cooperation would be forthcoming, though I was not left with the impression that this was a universal view.”
He adds that
“US companies…find it difficult to understand why they should honour a warrant signed by the Secretary of State”
when the US has a system of judicial authorisation of warrants. So there are pragmatic considerations as well as constitutional considerations for us in determining what impact increasing judicial authorisation might have on that greater co-operation involving overseas companies.
Of course the detail must be right and reforms should not adversely affect the relationship between the Executive and the judiciary in relation to other aspects of Government powers. They should also recognise the importance of the Home Secretary’s role in determining what the threats are to national security, rather than leave such an important task to the judiciary. However, it should be possible to make those reforms, and I believe that now is the right time to introduce judicial authorisation into the process. Clearly, there are different ways of doing it—for example, it would be possible to have different frameworks for different kinds of warrant. David Anderson recognises that there would be differences in relation to sensitive missions that affect other countries and our relationships with them. Clearly, rather than leave such cases to a purely judicial process, such cases would require decisions to be made by the Foreign Secretary, who is accountable to Parliament for those sensitive relationships with other Governments.
No, I am not. I am part way through an argument that there are different kinds of warrant and different circumstances. In cases involving foreign affairs, where sensitive relationships with other Governments may be at stake, the Executive clearly have an important role to play; they cannot be seen simply as judicial matters. However, there are other kinds of warrant—for example, intercept warrants for the purposes of tackling serious and organised crime, where if the action was not intercept, but was instead knocking down someone’s door and breaking into their home, authorisation would be an entirely judicial process. There are significant questions about why intercept in the interests of pursuing serious and organised crime should have no judicial authorisation, whereas knocking down somebody’s door should have judicial authorisation.
That is why I think there is a strong case for introducing judicial authorisation to provide a clearer system of separation of Executive and judiciary and to introduce clearer checks and balances into the process. It does have to be done in the right way and there will be different considerations around crime and national security and foreign affairs, but I believe it is possible because other countries manage it. If we were the only country in the “Five Eyes” that did not have a process of judicial authorisation, even though we have similar intercept arrangements, that would pose a big question for us. Those who simply defend the status quo need to explain why they think the arrangements in all those other countries are inadequate and worse than ours, given the added legitimacy that some judicial authorisation processes should bring.
I recognise the complexity here; that is why it is wise that we hold this debate now, in advance of the Government making their final decisions on the issue and setting out their proposals. It is also wise that we have a period of consultation on the draft legislation, so that people can table amendments and have these debates. However, I do not see why judicial authorisation need threaten or jeopardise the work of the agencies—quite the reverse. If it is a way to provide greater legitimacy, and support from overseas, for this work, it could add strongly to the process, and to agencies’ work.
On the legislative process, I welcome the Home Secretary’s proposal for a period of proper reflection and discussion on the detail before final votes are taken in Parliament. That is the right approach. We are keen to continue discussions with her on this subject, and I welcome the briefing that she provided for me to enable us to do that. When the Snowden leaks first appeared in the media, there was a sense that Parliament was not debating these issues, that the Government were not responding, and that other countries were having a more informed and up-to-date debate about the response and the processes.
On the subject of having a more informed debate, does the right hon. Lady agree that the Sheinwald report, redacted if necessary, should be published? Many believe that its proposals, including on international treaties, would do away with the need for some of what is proposed for any investigatory powers Bill.
I have not seen the Sheinwald report or had prior briefing on it, so I could not say how much redaction would be needed, but the right hon. Gentleman is right that the more transparency we can have in this debate, the better, so I urge the Government to consider allowing maximum transparency in this regard, to the extent possible, given the operational sensitivities and our relationship with the US Government on this. Clearly, the more we can look at the detail of alternative ways of providing the powers, safeguards and legitimacy needed, the better, and the better informed the parliamentary debate will be.
The initial debates and the response from the Government were not sufficient. However, we have since had reports from the Intelligence and Security Committee and David Anderson, and we have another forthcoming external report from the Royal United Services Institute for Defence Studies. This is the opportunity for Parliament to make sure that we have a proper updated response on the complexities of the digital age and how we maintain our security and liberty in it. More safeguards and checks and balances are needed, but it is also important that our intelligence agencies can deal with the serious and growing threats that the Home Secretary talked about. We need to make sure that our talented men and women in the agencies can face those real and serious threats, but also have legitimacy for the work that they do, and the continued confidence of the public. That is in all our interests.
In a democracy, our liberty and security are the targets of terrorists who seek to harm and divide us. Liberal democracy will triumph over extremism and tyranny, but for it to do so, we need to strengthen ourselves by renewing our security and our liberty. The Anderson report helps us to have a debate about how best we do that to protect our democracy.
Order. It might be helpful for the House to know that approximately 20 Back-Benchers are seeking to catch my eye. At this stage, I am not imposing a formal time limit, but a certain self-restraint, or self-denying ordinance, would be helpful. We can be led in this important mission by Mr Dominic Grieve.
Thank you, Mr Speaker. I think we can indeed be led in it by me, for this reason: notwithstanding my wholehearted thanks to the Home Secretary for the speed with which she enabled this debate to take place, a consequence of that speed—I hope she will not take this as a criticism—is that the material in our possession is now of such infinite complexity and depth that to do justice to all of it in this debate would be impossible. Indeed, one of the clear advantages of starting the legislative process in the autumn is that those of us who would like to participate properly in it have time to do a lot of holiday homework before we come back to the House then. I have always felt that one of the problems with the subject is that most of us in Parliament labour under a state of extraordinary ignorance, and have great difficulty getting to grips with some of the issues.
I spent four years and two months in the Government as the Attorney General, and without betraying state secrets, it may come as little surprise to the House to hear that I had some involvement with issues surrounding the lawfulness of Government. Of course, lawfulness extends to the interception of communications, and communications data, just as much as it does to everything else. It is possible that in that time, I had the wool pulled over my eyes—by the agencies, for example. However, my impression of the agencies from my dealings with them, particularly on surveillance and interception—this point is properly made in the ISC report—was of an absolutely rigorous desire to maintain legality; a willingness to get legal advice on areas of difficulty, as was mentioned earlier; and a very high standard of ethics. That standard of ethics went beyond legality to an understanding that in trying to protect us and prevent crime, they had to do a difficult job that could intrude into the privacy of the citizen, and that at all times they had to act in a reasonable, necessary and proportionate way. That was the clearest impression that I took from them. I left office with considerable admiration for the work done in that field.
That is not to say that everything can simply be left as it is, and that we can adopt a Panglossian view of the current state of affairs. As I mentioned in a previous intervention on this matter since the election, I think that there is complete unanimity in the House on the view that the Regulation of Investigatory Powers Act 2000 is not fit for purpose. I hope I may be forgiven for saying this: it has been described as almost incomprehensible, except to initiates, but I think even the initiates sometimes found it incomprehensible. I have a little lurking suspicion that because there has always been an anxiety that the legal framework will betray the level of operational capability, certain aspects of the Act were made deliberately opaque, even when it was drafted. We can hardly be surprised if, 10 years down the track, it appears even more incomprehensible than I suspect it was to those parliamentarians whose unhappy lot it was to scrutinise it when it was first being enacted.
The Act clearly is not fit for purpose. It clearly needs replacing. How we craft that replacement will—David Anderson’s report says this will be key—determine whether we can build trust. I will not get too carried away on the subject of distrust. David Anderson’s report rather highlights that notwithstanding Snowden, trust in the work of the agencies in this country on matters of surveillance and interception are rather high, and I have no reason to think that the public are hoodwinked. They seem, on the whole, to regard the institutions as benign and there to protect us, and I think they are right.
The question is, therefore, how we go about that process. I want to make only one point about this. We have had—let us face it—the complexity and the problems to which the Snowden revelations led. I have little doubt that those revelations have done very considerable damage in many cases, as has been cited, to the operational capacities of the agencies involved and their ability to protect us. On the positive side, that provides an opportunity for a more informed discussion so that the issues surrounding predictability in relation to what we legislate on can be better established for the future, and we do not end up with, or we have less of a problem with, people arguing that the legislation does not mean what it says.
That will be one of the great challenges for my right hon. Friend the Home Secretary. I wish her well in it. Those of us who have some inkling of what this is about will endeavour to help her as much as we can so that we can succeed in bridging the two requirements—that the legislation is open, transparent and understandable, and at the same time that it preserves operational secrecy, which will be a particular difficulty. I look forward to doing that aspect of the work in this House when the legislation comes back.
I turn to a number of the broad recommendations in David Anderson’s report, which is an amazing piece of work. I was delighted when he was appointed as independent reviewer of terrorism legislation, and the rigour with which he has delivered the report has entirely vindicated my right hon. Friend in trusting him to do this work. For the purposes of today’s debate, I shall centre on two or three points.
The first, which I suspect will be one of the big issues, concerns judicial authorisation. I am conscious that it may be argued, and I have heard it argued, that because our system broadly seems, particularly to the Executive, to function quite well, we should stick to the ISC report and continue with the current warrantry system. Against that, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) was right to make the point that we are very unusual in having our current system of warrantry. In other “Five Eyes” countries with high levels of intelligence capability and responsibility, a judicial system has been operated successfully. It is clear to me that a judicial oversight system, with possible exceptions where complex issues of policy may be involved, would probably enhance trust, although I would not get totally carried away with that. One must always bear in mind the potential problem that if the judiciary is seen to be turned into a rubber stamp for the Administration, that slightly removes the judiciary from the key work that it normally does: the arbitration of disputes, which is a different issue.
Nevertheless, my broad approach is that—if I may put it this way to the Home Secretary—the burden of proof is a little bit reversed. It seems to me, in the light of David Anderson’s report, that if the Government wish to maintain the current system, they will have to make a case why it is markedly better than that which would replace it. Beyond that, I am open minded. One argument I have heard is an anxiety that flexibility would be lost, and that it would not be possible to get warrants authorised quickly. I am not persuaded by that. I have seen injunctions obtained from judges in the middle of the night—indeed, judges signing injunctions in the bath and handing them out through the bathroom door—so that is not necessarily an overwhelming obstacle to involving judicial commissioners. They would necessarily be judges, though ex-judges and others might be able to do this work, and it would produce a measure of independence. If the Home Secretary concludes against David Anderson’s recommendation, I am quite prepared to listen, but she will have to make the case as to what would be lost by shifting the system to that which he has suggested.
Linked to that is the question of whether we should have a single commission. The two probably go together. A single commission makes a lot of sense. I am not sure about cost—it might cost no more, but it would certainly enable people to perform slightly different roles within one organisation. Again, I shall be interested to hear the Home Secretary’s views on that.
Other matters that have cropped up could be looked at today. Some anxiety over legal professional privilege has been expressed by both the Law Society and the Bar in the light of David Anderson’s recommendations. I am not entirely persuaded by that. One problem is that we need to preserve legal professional privilege, but the great difficulty has always been how to decide whether legal professional privilege applies if both the lawyer and the client are in criminal collusion with each other and legal professional privilege does not apply to the material that must be examined to decide whether that is the case. That will be another thorny subject, and I hope we can come back to it and craft legislation that provides the reassurance that lawyers undoubtedly need, preserves the principle of legal professional privilege, and also ensures that the material can, if necessary, be accessed if there is good reason to believe that what is taking place is not covered by legal professional privilege at all.
To conclude, I have covered only a number of very broad topics. There is so much more in the report that we will have to look at. I hope we have time before and during legislation to do justice to an immensely complicated issue. Of one thing I am convinced: we have been very well served by our agencies in this area hitherto, both in maintaining the very standards that we should be proud of in a democratic society, and in carrying out a difficult job that sometimes involves a difficult balancing act between privacy and the necessity of serving the wider public, all done in a spirit of which this House and the public should be proud. That was absolutely the impression I was left with. I would like to see us succeed in putting in place a framework for the future that ensures that in 10, 20 or 30 years people can still say the same thing.
I speak as someone who, as the Home Secretary knows, had a hand in the commissioning of this excellent report. The right hon. Lady will remember with fond, misty-eyed nostalgia the debates that she and I had on this complex, fraught and all-important area of public policy. One of the consequences of those debates and disagreements was that a number of reports were commissioned, including David Anderson’s. We look forward, as the Home Secretary said, to the publication of the report by RUSI. I strongly endorse her compliments to David Anderson and to the authors of the other reports, and I join in all that has been said in complimenting the professionalism and integrity of the work of the agencies—professionalism and integrity that I found on display daily in my work with them in government. As I will explain, my quibbles were invariably with proposals emanating from the Home Office about what new power should make its way on to the statute book, rather than with the day-to-day conduct of our highly effective intelligence agencies.
On the back of this excellent report from David Anderson, we have an unusual opportunity to try to reset the balance between privacy and liberty on the one hand, and safety and security on the other, in a digital age. As the Home Secretary rightly pointed out, all too often this debate is falsely caricatured, as if people who worry about security do not worry about liberty, and people who worry about liberty do not worry about security. In this area, as in so many other walks of life, it is necessary to strike the right balance. To somewhat misquote Benjamin Franklin, if we give up our liberty to gain a little security, we will deserve neither and lose both. As the shadow Home Secretary said, we should be striving to strengthen both liberty and security in tandem.
I am certainly no slouch when it comes to introducing new surveillance powers on to the statute book when it is demonstrably the case that doing so makes us safer and is necessary in order to keep up with new technologies. That is one of the reasons, as the Home Secretary is aware, why I always advocated legislating, as we have done, to enable enforcement agencies to match IP addresses to handheld devices, and why we legislated in the Data Retention and Investigatory Powers Act 2014—the acronym is DRIPA, unfortunately—to improve data-sharing between UK and US enforcement agencies. However, I have always drawn the line—I did in government and I do now—at proposals that I feel are either not based on proper evidence or not adequately proportionate and transparent. It is in that light that I would like to turn to a few of the points made by David Anderson.
I will not dwell on the points that have already been made about introducing a judicial role in the issuing of warrants, but I want to underline the shadow Home Secretary’s point that David Anderson made his case on the basis not just of principle, by pointing out that our practice is significantly out of line with how warrants are issued in other analogous jurisdictions, but of his observation—this was surprising, at least to me—that there might be operational value in introducing a judicial element in the issuing of warrants, as it would enable us more readily to secure data from American communications service providers, which are used to that kind of system.
I want to dwell on David Anderson’s comments on the draft Communications Data Bill—the so-called snoopers charter. David Anderson is scathing in his report about the proposals in the Bill to force UK network providers to collect and store third-party data relating to services operated by companies based overseas. He says quite unambiguously that,
“there should be no question of progressing this element of the old draft Bill until such time as a compelling operational case has been made”.
It is worth reflecting on that for a moment. I was told categorically and repeatedly in government that that was absolutely necessary for the safety of the public; that public safety would be in jeopardy if I did not endorse it. David Anderson has now found that no operational case has been made for that. Echoing an earlier question to the Home Secretary, I seek clarity from the Government on whether the forthcoming Bill will contain third-party data provisions, which David Anderson has said it should not.
In the light of that, I think that we should treat other proposals that do not have a clear evidence base or rationale—most importantly, the Home Office’s proposal to require CSPs to store so-called weblogs—with an equal amount of healthy and considered scepticism.
I thank my right hon. Friend for that intervention, which I will come to in a moment, because David Anderson has made some specific recommendations on how we compare with other jurisdictions.
David Anderson has managed to do something that I certainly did not manage to do in government: to get the Home Office to define the somewhat nebulous term of weblogs. Weblogs, according to his report, are
“a record of the interaction that a user of the internet has with other computers connected to the internet.”
The House should take a long, hard look at that definition. It encompasses just about everything someone is likely to do on an internet-connected device—every step they take, every app they open, every edit they make to an online document—and that would be stored for the entire population for 12 months. David Anderson says that, remarkably, at no point was he presented with a “detailed or unified case” for such sweeping powers.
David Anderson also makes it clear—this relates to the point my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) has just raised—that we would be seriously out of step with the rest of the world. He states:
“I am not aware of other European or Commonwealth countries in which service providers are compelled to retain their customers’ web logs for inspection by law enforcement. I was told by law enforcement both in Canada and in the US that there would be constitutional difficulties in such a proposal.”
The House will also be interested to know that the new Australian data retention law specifically excludes the collection of weblogs precisely because the Australian police told their Government that it would be a disproportionate invasion of privacy.
It is entirely reasonable for law enforcement to want to identify how a known suspect is communicating online, but that is a completely different proposition from the one that the Home Office has now been putting forward in one form or another for eight years. David Anderson sets out a strict process, including using existing powers better but less intrusively than planned by the Home Office, and the presentation of a proper operational case before any detailed proposal is put forward by the Government. I am obviously keen to know from the Government whether that reasonable approach that he advocates will indeed now be pursued.
Finally, I welcome the Home Secretary’s announcement today that the Bill will be published for pre-legislative scrutiny, which will allow further debate on its undoubtedly complex and important provisions. The Bill must be as comprehensive as possible. Both the Intelligence and Security Committee and David Anderson have argued that it should incorporate all the powers that exist in different statutes at present. In that spirit, I hope that the Government will undertake to avow all undeclared surveillance capabilities and major programmes as part of that process.
I have come to the view that the Government’s standard blanket position of “neither confirm nor deny” is simply no longer tenable. Recent disclosures mean that the public are able to read detailed accounts of alleged surveillance capabilities, but Government Ministers are unable to explain or defend the need for them in this House or in public. I believe that undermines public trust, feeding a suspicion that there are parts of the system that somehow operate beyond proper scrutiny and transparency. Although we cannot and should not reveal details of operations and specific investigatory techniques, will the Home Secretary ensure that large- scale programmes, such as those referred to in recent revelations, are properly avowed at some point in the near future?
In conclusion, it seems to me that, as has already been said, and as the Home Secretary herself has suggested, we have a big opportunity. The deadline of December 2016 is approaching, when the current data retention powers will fall. Decisions must be taken—they simply cannot be ducked any longer—and they must be taken as consensually as possible, and on the basis of clear principles of necessity, transparency and proportionality. Surveillance powers are a necessary part of a liberal society, as we must have the ability to prevent criminals from curtailing the liberty of others to live their lives free from crime, but those powers must be based on evidence that they are both necessary and proportionate to the threat we face. I suggest that this House should not entertain proposals for significant, intrusive new laws based on assertion and rhetoric alone.
It would be remiss of me not first to apologise to you, Mr Speaker, and to the Home Secretary for my absence for the earliest part of this debate; I had a long-standing constituency engagement—an occupational hazard of representing a central London seat. Actually, I am having to miss my daughter’s end-of-term ballet show, so I suspect that I will have rather fewer brownie points in my household than the shadow Home Secretary will have in the Balls-Cooper household.
This is anything but routine and uncontroversial business. As someone who served throughout the previous Parliament on the Intelligence and Security Committee, I am fully aware of the intensive work that went into at least one of the reports that we are discussing today. Naturally, it was the Edward Snowden revelations in The Guardian that first led to allegations in the US—we have a close intelligence relationship—that UK Government agencies were engaged in blanket surveillance on the internet. The inherent tension between the individual’s right to privacy and the collective entitlement to security referred to by the right hon. Member for Sheffield, Hallam (Mr Clegg) set the context for all these inquiries.
We looked first at interception. The agencies conduct two types of interception depending on the information they have and what GCHQ, MI5 and MI6 are charged with trying to achieve. The first type can be used as an investigative tool only where there is specific knowledge of a threat, allowing agencies to intercept a specific individual’s communications. That is known as targeted interception. However, as my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) said, the watchwords of necessity and proportionality lie very much at the heart of everything that our agencies wish to do. If the target is in the UK, the activity must be authorised by the Secretary of State under RIPA. Even the most ardent of privacy campaigners accept that principle of targeted interception.
The second sort of interception arises as a discovery or part of an intelligence-gathering tool. This allows the agencies to use targeted interception only after they have discovered that a threat exists. Such separate capabilities are required in order to uncover threats in the first place so that the agencies can determine patterns and associations that can generate the leads and obtain the information used to target individuals under suspicion. Bulk interception is primarily used as a discovery tool. This capability attracts the most controversy, as we have seen. It has helped to create an impression—misguided, in my view—that GCHQ is monitoring the communications of everyone in the UK. I should make it clear that, if that were the case, GCHQ’s actions would be illegal.
Our Committee rightly scrutinised in great detail the agencies’ capability to intercept internet communications, and we had a number of key findings. First and foremost, bulk interception involves three stages: filtering, targeting, and selection. The first of those involves choosing which communication links are to be accessed. It is worth pointing out that each and every minute the internet carries some 4.1 million Google searches, 6.9 million Facebook messages, 350,000 Twitter posts, and 204 million emails. Most of those communications are carried out through fibre-optic cables that carry bearers, of which there are only about 100,000. GCHQ can theoretically access only a tiny percentage of those bearers. It is therefore misleading to use the phrase “blanket surveillance” for what it does.
The second stage that GCHQ has in mind is to select which communications to collect from the very small number of bearers that it is accessing. A decision is then made on how it collects the communications to read. For communications collected under the first processing system, GCHQ undertakes a so-called triage process to determine which messages have the highest intelligence value. Even when GCHQ knows that communications relate to a known national security target, it does not have the capacity to read them all and must therefore, even within that context, prioritise. This all means that only a very small proportion of collected messages are ever read.
When we scrutinised those arrangements, we found that GCHQ will search for and select communications to examine only on the basis of a selector relating to an individual here in the UK, if—and only if—it first obtains a specific authorisation from a Secretary of State naming that individual. It is unlawful for our security services to search for and examine the communications of someone in the UK without a targeted additional authorisation. Our Committee found that the regulations and safeguards in place were, on the whole, pretty reassuring. That said, as Members will be aware, we made a number of recommendations in order to address concerns about transparency. This was very much mirrored in much of the Anderson report. Anderson was critical about some of the legal framework, of which I will say a little more later, but ultimately he gave the actions of GCHQ very much a clean bill of health.
We also examined the concerns that have been expressed over how the agencies use communications data—the “who, when and where” of a communication. This debate is increasingly complicated by widespread confusion about what information is classed as communications data and what is classed as content. There is a grey area involved. For example, looking at information that would not usually be classified as content, but has the potential to reveal a great deal about someone’s private life, should be placed in a special category where more scrutiny is placed on it than there ordinarily would be merely on the basis of its being communications data.
On the other rather intrusive capabilities potentially used by the agencies, the ISC report contains a number of detailed recommendations primarily in relation to specific statutory oversight and greater transparency, where that is possible without damaging national security; that must always be at the forefront of our minds in these matters. The most significant finding in our report, and in the Anderson report, relates, as other Members have rightly pointed out, to the legislative framework that governs the use of all these intrusive capabilities. At present, no single piece of legislation governs the powers and responsibilities of our intelligence and security agencies. The current framework is, as we have heard, complicated and unwieldy. Consolidation is now essential to maintain or sometimes—dare I say it?—to re-establish public confidence.
While we saw no direct evidence that the agencies were in any way seeking to circumvent the law—in truth, their constant watchwords are necessity and proportionality—I am afraid that the lack of clarity in the existing legislation has understandably fuelled suspicion that our security agencies are, on occasion, able to arbitrage the plethora of statutes to choose the easiest route in seeking authorisation. That cannot be a satisfactory situation. I therefore believe that the purposes, functions, capabilities and, importantly, obligations of our security agencies will need to be set out clearly in a single Act of Parliament. Like my right hon. and learned Friend the Member for Beaconsfield, I have some sympathy for the plight that the Home Secretary will face in having to get such a Bill through Parliament. It will be essential, but it will be a complicated matter. It will have to include issues such as privacy constraints, transparency arrangements, targeting criteria, sharing arrangements, and other safeguards that apply to the use of the security agencies’ capabilities.
The single most profound impact of the Snowden revelations has been felt by the global communications service providers. Exposing the hitherto cosy—perhaps over-cosy—relationships that existed between many household-name internet giants and security services and Governments across the world has resulted in a furious insistence from the CSPs that such co-operation must in future be governed by a clear legal framework.
That has potentially very serious implications, especially if there is any demand by globally run CSPs that such protocols should also operate on a global basis. This is, not least, because we have in this country a different culture regarding the security services, with a different framework and understanding of the way in which they operate within our Government compared even with other members of the “Five Eyes”. There is a glaring difference between the average UK citizen’s acceptance of the work of the secret intelligence agencies and the cultural approach taken to such matters in the USA, where there is a great sense of the individual being up against an all-powerful state, and in much of continental Europe. That is understandable. One need only look to my mother’s homeland. For six years of her life, she was brought up in Nazi Germany under the rigours of the Gestapo, and then under the Stasi in East Germany between 1945 and 1954. That has had a very strong bearing on these cultural differences. There is a danger that we in this country, after Bletchley Park and the glamour of James Bond, could be a little complacent about the way in which we view how the security services operate. It is very different in other parts of the world. If there were to be a push towards such global protocols, it would be more difficult to make the case for our exceptionalism.
My right hon. Friend makes a powerful case. This is one of the factors that we will have to take into account when we consider whether there might be advantages to judicial warrant systems because they are likely to command more acceptance internationally even if they do not necessarily seem to be required in this country.
I do not entirely agree with that, but I will touch on it in my concluding comments, which I will move on to fairly shortly.
There are potentially serious implications for the operational capabilities of our security services in their counter-terrorism operations. I am struck, however, by the clear irony that the business models of most internet service providers hinge on the exploitation of knowledge from their own user customers, which can then be sold for profit to third party advertisers. The protection of privacy obviously has its limits.
Snowden’s impact has also revolutionised the demand for and the creation of ever-more effective encryption, which further and seriously depletes the capabilities of our security services. In the aftermath of the terrorist attacks of 2001 and, more recently, the attacks that took place on the streets of London almost exactly 10 years ago, the conventional wisdom was that public safety could be protected only by ever more sophisticated targeted internet surveillance. The events of recent times mean that it would be unwise to neglect the future importance of developing more traditional security tradecraft. Our security services will need to invest extensively and prudently in agent expertise on the ground, rather than simply relying on ever-more sophisticated electronic surveillance expertise.
May I make a final observation on the highly contentious issue of the authorisation of warrants? As has been pointed out, the independent reviewer of terrorism legislation contends that all warrants should be subject to judicial authorisation. I also accept that, in the interests of promoting public confidence, it is now probably necessary that the regime of judicial oversight applying after the event will need substantial bolstering.
We need to remember, however, that it is senior Foreign and Home Office Ministers who are answerable to this House and to Parliament in the event of a major terrorist incident, which invasive surveillance is, of course, designed to prevent. It will be elected politicians, not judges, who will ultimately be accountable to the court of public opinion. Ultimately, therefore, I stand by the ISC’s view that Ministers should authorise warrants. Nevertheless, it is important that senior judges will need to be given a more significant role in scrutinising the operation of the process.
Our intelligence agencies do a very important, and increasingly very challenging, job in what are very difficult times. I believe that the UK public have good cause to maintain confidence in what they do, but I also contend that only greater transparency and scrutiny of their work will improve public understanding and reinforce that sense of confidence.
The Scottish National party welcomes the publication of the Anderson report, which, as others have noted, is very thorough, and one can have only admiration for the job David Anderson QC has done. The SNP wants to work constructively with Members of Parliament across the Chamber to make sure that when the new Bill to which the Home Secretary has referred is introduced it takes adequate account of civil liberties and human rights issues.
The SNP recognises the need for law enforcement and security services to have access to the information they require in respect of the threat not just of terrorist offences, but of serious crime, such as the significant evil posed by child sexual exploitation. However, the SNP will always be vigilant to ensure that appropriate safeguards are put in place to balance the need to keep our communities safe with the need to protect civil liberties.
Although we have some concerns about the report’s recommendations, we welcome many of its aspects. We welcome in particular the call for a comprehensive and comprehensible new law to be drafted from scratch, to replace the multitude of current powers and to provide for clear limits and safeguards on any intrusive power that it may be necessary for public authorities to use.
We also very much welcome David Anderson’s recognition of the need for the new law to comply with international human rights standards and to be subject to the visible and demanding safeguards reflecting the central importance of both the European convention on human rights and the Human Rights Act.
We welcome the fact that the report urges much stronger oversight of the activities of the police and security services. We support the recommendation that interception warrants should be granted by judges rather than politicians. That properly reflects the separation of powers between Executive and judiciary, as applies in democratic countries across the world that pay more than lip service to the importance of the rule of law. In that respect, I wish to associate myself with the insightful comments of the shadow Home Secretary and the right hon. and learned Member for Beaconsfield (Mr Grieve).
The SNP also welcomes David Anderson’s recommendation that the Investigatory Powers Tribunal should be able to make declarations of incompatibility under the Human Rights Act and that its rulings should be subject to appeals on points of law.
Finally and most importantly, we welcome David Anderson’s statement that no operational case has yet been made for the compulsory retention of third party data. He has also questioned the lawfulness, intrusiveness and cost of the proposals of the draft Communications Data Bill in 2012. His comments are a serious blow to previous Government attempts to introduce what was in effect a snoopers charter. David Anderson notes that no other European Union or Commonwealth country requires the blanket retention of weblogs and, as the right hon. Member for Sheffield, Hallam (Mr Clegg) has noted, Australia recently prohibited that in law—and for very good reason.
When the report was introduced to the House two weeks ago, the hon. Member for Brighton, Pavilion (Caroline Lucas) noted that both the European Court of Justice and David Anderson have now made it clear that blanket retention of data is unlawful. The SNP hopes that the UK Government will take serious cognisance of that.
The director of Liberty, Shami Chakrabarti, has noted:
“It’s striking that—despite a five-year campaign by the Home Secretary to convince us of its absolute necessity—David Anderson concludes that no operational case for the snooper’s charter has yet been made.”
The SNP hopes that David Anderson’s report will be the death knell for the snoopers charter.
My hon. and learned Friend, who has enjoyed a distinguished career as a lawyer, has rightly welcomed large parts of Mr Anderson’s report. Does she, like me, but perhaps unlike the right hon. and learned Member for Beaconsfield (Mr Grieve), share the concerns of many lawyers across the UK that the rule of law and, indeed, the proper administration of justice may be undermined if the protection offered by legal professional privilege is not fully respected by investigatory powers legislation?
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.
I appreciate the hon. and learned Lady’s concern—and I appreciate, too, that this is one of the issues we will have to look at during the passage of the Bill—but I wonder whether she is right in her belief that a sort of mass trawl of a speculative character is taking place. I do not think it is, and listening to what my right hon. Friend the Member for Cities of London and Westminster (Mark Field) was saying, which I think correctly reflected what has been taking place, I do not think the way in which she has described it is the correct way of identifying what has been going on. It may be, therefore, that she can get some reassurance on this as the Bill goes through.
I clearly defer to the right hon. and learned Gentleman’s experience, as he has been a Law Officer in England and has direct knowledge of the issue. I cannot speak from direct knowledge, but I can say that there is significant public perception and concern that what is at stake is mass, speculative trawling. The House must take that concern very seriously, and it is perhaps backed up by recent revelations.
When the Anderson report was first introduced to the House on 11 June, the Home Secretary, in her statement, did not commit to the root-and-branch reform recommended by Anderson. I am not sure whether she committed to it in her contribution today, but clearly we will have to wait and see the draft Bill that is introduced in the autumn. The SNP wishes to see that Bill bringing about the comprehensive and comprehensible reform recommended by Anderson, as well as achieving the appropriate balance with civil liberties and the recognition of international human rights norms.
The last time we spoke about this matter, the right hon. Member for Haltemprice and Howden (Mr Davis) invited the Home Secretary to look hard at the recommendation for judicial warrants, but I am afraid that I found her response on that—both two weeks ago and today—decidedly lukewarm. However, I note her assurance that no decision has been taken as yet. This is a matter of serious concern for the SNP, and I very much support what the shadow Home Secretary said in that respect.
Cross-party co-operation in this Parliament has already forced the Government to backtrack on their plans to repeal the Human Rights Act, at least for the time being. Everything about David Anderson’s report emphasises the need for human rights to be protected under internationally recognised norms. The SNP will seek to defeat any Government plans to curb civil liberties in the forthcoming Bill. In particular, we are concerned that the mass collection of data, without any suggestion of criminality or wrongdoing, impinges on civil liberties, and we are committed to opposing any snoopers charter that sanctions mass spying on the public at large. I mention that, because it is a matter of huge public concern. In opposing any snoopers charter, the SNP will do so secure in the knowledge that both the Anderson report and the Court of Justice of the European Union agree that such a charter would be unlawful.
We support the targeted and proportionate use of lawful intrusive powers, but the Snowden revelations of 2013 and subsequent litigation brought by Liberty and others show just how far we have moved from a model whereby those under suspicion are targeted and the innocent are left free from state intrusion. Even more worrying is the fact that prior to recent revelations, the public and many politicians were unaware of the nature and extent of blanket surveillance.
In order for trust to be restored, this Parliament must assert its democratic function and set clear limits on the use of intrusive powers and prohibit their use on a mass scale.
Order. Before I call the next speaker, may I point out that a very large number of Members still wish to catch my eye? I do not want to impose a time limit, but if we can keep speeches to eight minutes, we can be sure of getting everybody in.
I start by paying tribute to our security services, whose work I have seen at first hand over many years. They are superb professionals, who, unspoken and silently, keep us safe every day on the streets of Britain in a way that we want and is emulated across the world.
I pay tribute to David Anderson’s report. From its very wisely chosen title to annexe 18, 373 pages later, it is truly magisterial. If I had a criticism, it would be that there are too many acronyms, but stand fast in my view that it is a truly superb work. The Intelligence and Security Committee report, too, in its own way, is also worthy of very close attention and provides a backdrop for the consideration that this House will be engaged in as we run up to autumn and the much anticipated consideration of the draft legislation.
We heard today, from my right hon. Friend the Member for Cities of London and Westminster (Mark Field), about his daughter’s ballet. We have heard about the shadow Home Secretary’s child’s graduation. A feature of this point in the academic year is that we are concerned about our children and their achievements. At the weekend, I had the very great pleasure of being at my daughters’ sports day. What impressed me most, apart from the athletic prowess of my daughters, was the camera overhead, monitoring this business, with the full consent of the school, the children and—I think probably implicitly—the parents for posterity. At first glance, it looked a fairly benign exercise, but I do not think that I was the only one who felt slightly uneasy. In my recollection, it was the first time I had come across this particular piece of technology—a great cumbersome, burdensome thing, very obvious and very noisy. In 10 years’ time, it will be replaced—I have no doubt—by a thing the size of a small insect, and at that point, it will become far more sinister. If I had one plea, it would be this: as we consider the draft legislation towards the end of this year, we must make sure that we future-proof the Bill and the Act that eventually transpires. That measure must be good for many years to come, and at a time when we will be faced with technology that most of us can only imagine at the moment.
My interest in this matter stems from my experience as the Minister for international security strategy and a Minister in the Northern Ireland Office, and as a Member of Parliament who represents a large number of people who are engaged, in one way or another, in the security services. Of course, all of us in this place are intimately involved with the product of the security services, since all our constituents are affected by it in one way or another.
I am very impressed by the National Crime Agency’s statistics on what it has done as a direct result of material that has been intercepted: the 750 kg of heroin and 2,000 kg of cocaine that were intercepted in 2012-14; the 2,200 arrests; the 140 firearms that were intercepted; and the £20 million of illicit loot that was seized. I note Operation Notarise and the resulting 600 arrests for suspected child abuse. All that represents a great well of human misery. Such things will not be dealt with unless we invest in our security services the powers they need to intercept material in a fast-evolving electronic space.
Clearly, the balance needs to be struck between our need to keep people safe in a complex world and privacy; between the extremes of Big Brother and the anarchy and lawlessness of laissez-faire. My right hon. Friend the Home Secretary touched on that in her remarks. To be honest, I do not know where on that Likert scale between Big Brother and laissez-faire we need to pitch our legislation. That is a matter for debate in the months ahead.
I was alarmed that the Intelligence and Security Committee report from earlier this year reported that organisations such as Big Brother Watch, Justice, Liberty and Rights Watch UK felt that the security environment was having a “chilling effect” on society. I do not believe that that is the case. I think that my constituents would be “chilled”, however, if we were not able to interdict and intercept the sorts of villains who would do them down and create havoc on the streets of this country. My constituents would be “chilled” in the event that we accepted, as those organisations appear to do, atrocities on the streets of London like the murder of Fusilier Lee Rigby. That is the consequence of not giving our security services the powers that that they need. It is as straight- forward as that, notwithstanding my remarks about balance.
There are many matters to be considered in the autumn. I welcome the opportunity this House will have for pre-legislative scrutiny. In the short time available to me, I would like to touch on one or two of those matters. Right hon. and hon. Members have commented on the need for public awareness and education to avoid confusion. I do not agree with the hon. and learned Member for Edinburgh South West (Joanna Cherry) in so far as she suggested that there was widespread concern about snooping. There is not much evidence to sustain that. However, it is our duty, as we approach this legislation, to do our best to educate the people in whose name we act to ensure that they have the sort of understanding that is needed in a civil society to have confidence that the powers invested in the security services are appropriate, necessary, proportionate and legal. It is the job of Members of this House and, if I may say so ever so gently, the re-formed Intelligence and Security Committee to inculcate that understanding among the public, as far as is possible.
Snooping is a complete misnomer and, as we have heard this afternoon, there is nothing to sustain that description. That does not mean to say that we should not put in place the mechanisms that are necessary to ensure that our security services do not, wittingly or unwittingly, abuse the position of trust in which they are invested.
We need to be conscious that technology is proceeding apace. Quantum computing, probably in the next 10 years, will provide a double-edged sword, because it will increase the ability to encrypt data and thus the ability of villains to do bad stuff, but it will also improve the ability of our security services to survey bulk data, which brings significant implications for the legislation that we will consider in the autumn. As well as the requirements that the collection of material be necessary, proportionate and legal, the fourth hurdle is the impossibility of surveying the great bulk of the data. It is simply not possible for the security services to snoop in the way that has been suggested, because there is so much data and the technology does not exist to spy or snoop on people or invade their personal liberty in the way that some people seem to think is routinely possible. That may change, however, and we must ensure that the legislation we consider in the autumn is up to the task of dealing with this stuff as it evolves, as it surely will, over the next decade.
There are various things that we can do to mitigate that risk. We can insist on a time limit for the retention of data. We can be wary of allowing internet service providers to hold bulk data that are capable of being mined—so-called “big data”. I am persuaded that there is a distinct possibility that, in the near future, agencies will be able to profile people and predict not what they have done, but what they might do in the future on the basis of the profile that they have built up. That is extremely sinister.
Although it would be illegal to do that as things stand, if we could no longer rely on the fourth hurdle that I mentioned, namely the physical inability to tap the data because of their extent, it may just be possible with quantum computing and the changes in technology over the coming years, providing a sort of electronic version of Dixon of Dock Green that eyes up wrong ‘uns who might get involved in criminality or worse in the future. We need to future-proof the legislation to avoid that.
I am aware that other Members want to speak, so let me say very quickly that we need to be careful about the status of communications data—the who, where and when. Given the increasing importance of the data, the sophistication of them and the profiling that is capable of being built up on the basis of them, we need to look at the status of the designated person. I am not convinced that it is proper to vest those powers in a middle-grade person. We need to look at whether that needs to be changed in order to preserve the liberties that we have discussed today.
I want to comment briefly on who signs warrants for intrusive activities, because that is an important part of the material that we are discussing. Sir David Omand and the Home Secretary are quite clear on that point and I agree with them because of my ministerial experience, although I was at a far lower level than my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I am less persuaded—indeed, my right hon. and learned Friend was not persuaded—by the immediacy argument. That seems to me to be superficial and easily dealt with. I am persuaded about the need to consider the wider political context. That is an important point. I am also persuaded on the point about accountability. We in this place are elected to represent real people. Nobody ever put a cross by the name of a member of the judiciary.
The accountability argument is, without doubt, the most powerful argument for Ministers doing the warrantry process. Of course, there remains the problem that, due to the nature of the work, accountability to this House can sometimes be difficult to achieve in practice because, inevitably, it is not made public. That is a tension that the House will have to debate and resolve.
As one would expect, my right hon. and learned Friend puts his finger on it. The mechanism that my right hon. Friend the Member for Cities of London and Westminster described so well may be a remedy for that, but nevertheless my opinion is that the power has to remain with Ministers. We need to guard jealously the power vested in our politicians, who are accountable to the House and the people for the extraordinarily important things that they do.
At the heart of the matter lies an improvement in public understanding. In the months before December next year, we have to do everything we can to inculcate in the public a far better understanding of these sensitive issues. Each of us has a job to do in that respect, and I hope that the Intelligence and Security Committee will play its part in improving public understanding. Our civil society will be in a much better place as a result.
I may speak very quickly to get through everything I want to say, Madam Deputy Speaker.
I will refer to the reports by the ISC and the independent reviewer of terrorism legislation, not the two later reports, which we have not really had an opportunity to read or consider properly. The report by David Anderson, QC, aptly entitled “A Question of Trust”, has rightly been complimented in the House for its thoroughness and rigour. Perhaps we should give a warning to those who might want to read it, though—do not drop it on your foot. Anderson’s recommendation that the law on investigatory powers should be made both comprehensive and comprehensible has also been widely endorsed, and it is surely right. If it is unintelligible to a lay reader, it will seem esoteric and inaccessible to all and will therefore not inspire public confidence.
I would like to focus on the main bone of contention, which is who should have authority to grant permission for access to the content of people’s private communications. The ISC’s report, for all its strengths, offers an insider’s view. The Home Secretary no doubt found much more to agree with in that report than in others, not least because she found herself extensively quoted in it. After hearing evidence that, in my view, was heavily weighted towards Ministers and officials from the security services, the ISC came down squarely on the side of the status quo. It concluded that the current system of ministerial authorisation of interception warrants should be maintained. I listened with some interest to the comments of the right hon. Member for Cities of London and Westminster (Mark Field) on that issue.
The Committee appears to have reached its conclusion based almost wholly on the recommendations of Ministers themselves, with the concerns of civil liberties groups being given comparatively short shrift. In concluding that Ministers were better equipped than judges to make decisions on warrants, the Committee relied on arguments some of which, in my view, were based on flawed logic. I will give one example. It argued that,
“Ministers are able to take into account the wider context of each warrant application and the risks involved, whereas judges can only decide whether a warrant application is legally compliant.”
The example that the Committee provided by way of support for that rather extraordinary claim was the diplomatic fracas following the allegations in 2013 that the US National Security Agency had tapped the German Chancellor’s phone. The ISC’s less than subtle implication was that whereas a Minister would have the wisdom to reject such an application, judges would be too clueless to understand the requirements of international diplomacy and could not possibly be trusted to understand the diplomatic implications of such a decision.
Does the hon. Lady not accept that Ministers and judges have a different role? The report recognises that the role of a Minister is to represent Her Majesty’s Government across a broad swathe of areas, including international policy, and the role of a judge is to adjudicate on a question of law.
Yes, of course, but it underestimates the subtle role that judges have come to play in recent years. For example, the development of administrative law has meant that judges have to be able to balance a number of factors. Are we essentially saying that the only way for Ministers to have some form of oversight of the security services is by giving permission for intercepts? There must be greater oversight than that. For example, if there was a suggestion that—I am plucking an idea from the air—we should tap the phone of the President of France, are we saying that the Home Secretary would not be aware of it if there were a system of applying to the court? If that is our current system, we need to examine it carefully. We need to ensure that our Ministers have some form of oversight of the security services, but that does not preclude the need for judges as a back-up. Surely Ministers would welcome the idea that they can not only make their own judgment but have it backed up with the authority of a judge.
The caricature of judges as being completely out of the world does not bear up, in my experience. I have to declare an interest at this point—I am married to a judge, and there have been times when my husband has been duty judge. Although the phone has not necessarily been passed to him while he has been in the bath, it is quite right that judges are flexible and can move quickly to make decisions as and when necessary.
I have already given way to the hon. Gentleman, and I want to try to keep to your strictures, Madam Deputy Speaker. I am not doing very well—I have only three minutes left if I am to do so. I suspect that I might not, but I will go as fast as I can.
Judges do not live in a vacuum. Their job requires them to have some form of judgment. There have been great challenges to the establishment, and the public have great scepticism about not only politics but all sorts of pillars of the establishment. I find it interesting that the judiciary is one of the few areas that are not challenged in the same way. Whenever a difficult issue needs to be decided on or there has been a crisis, it does not take people long to call for a full judicial inquiry. When we are talking about trust in the highly contentious field of investigatory powers, it seems to me that it would be a mistake for Ministers not to call for the back-up of the judiciary. When we are considering a radical overhaul of the legislative and regulatory framework, we need to be bold.
There is great sense in David Anderson’s report. He talks about the establishment of a new body, which is the backbone of his recommendations, not just one of many proposals that he has put forward. It is absolutely essential, and last time we discussed the matter in this place I was a little alarmed to hear the Home Secretary refer to it as being only one of many recommendations. Actually, the body features in about 50 of the recommendations, so I hope that it is not pushed aside as being a peripheral issue. Clearly, it is not.
Transparency is another important part of David Anderson’s report. The new commission would not only take on responsibility for approving warrants but would incorporate the retrospective audit functions currently exercised by the interception of communications commissioner and the intelligence services commissioner. Those officers currently fit into what I see as a deeply foggy regulatory arrangement, which in many ways is reminiscent of Wall Street before the crash, when not a single one of the half a dozen or so agencies that were given the job of regulating and supervising the banks seemed to be able to exert its authority sufficiently or even know what was going on under its nose, let alone have the power to stop it.
The Home Secretary said to the ISC at that stage that it was important for the decision to be taken by somebody who is democratically accountable to the public. I understand that, but the reality is that thousands of warrants for interception are issued under RIPA. We do not know what proportion of applications the Home Secretary does not approve when they appear on her desk, because both she and successive Governments have refused to say. The current Home Secretary admitted in evidence to the ISC that the proportion of applications she approves is very high. That is not surprising, given that reviewing such applications takes up such a significant proportion of her day and it is not as though she does not have lots of other things to do. She relies heavily on the judgment of her officials—we would, of course, expect her to do so—but we have to be careful that it is not a rubber-stamping exercise. I am sure it is not, but we have to be mindful about what it looks like when we are considering a question of trust. Let us look at the reality before deciding whether a change would be a bad thing.
Taken together, David Anderson’s proposals represent a radical overhaul of the existing framework. I do not believe they are the worse for that. When looking at the report, we must go back and say to ourselves that, in the end, we need a radical overhaul. We need to bring the public with us. We need to be unafraid to bring in additional expertise. A clearer framework in which we can have traditional oversight of such sensitive things as intercepts must be a good thing.
I am honoured to be called, after such distinguished speakers and in such an important debate, to give my maiden speech.
For me, paying tribute to my predecessor is more than a convention; it is something I do with real affection. Sir Tony Baldry has served our area since I was a little girl. In the 32 years he spent in this place, he helped, as a Minister, to privatise the energy industry, served as Chairman of the Select Committee on International Development, and, more recently, sat on the Government Benches as Second Church Estates Commissioner. He acted as the voice of God in this place and was responsible for everything from bats and bishops to blasphemy. Sir Tony believes in God, but he also believed in Mrs Thatcher. In his first political job as a young man, he was proud to act as keeper of the hairspray. He is loved locally as our very own “Sir Cumference”, but it is his loyalty, decency and sheer hard work that will make him so hard to follow.
There is another former Member, now in another place, to whom I must pay tribute. I owe to my father my lifelong knowledge of, and love for, our area and its people. I am one of the very fortunate band of Members able to represent their home-town.
North Oxfordshire is a beautiful place to live. I am sure many Members can picture our river valley, rolling hills and medieval churches encircled by villages. It is true that at home I make cider and keep ferrets.
Four generations of my family have the soil of north Oxfordshire under our fingernails, yet this is only partially a rural constituency. The vast majority of my constituents live in one of our two major thriving and substantial market towns: Banbury and Bicester.
Business is booming. Thanks to the long-term economic plan and the impressive industry of my constituents, we have almost no unemployment. That is not something my predecessor was able to say until the very end of his term here. We excel at food production and engineering, often with agricultural roots; town and country balanced to provide the perfect setting. The Bicester hunt meets in a factory that produces engines for lawnmowers. The diversity of commerce found in converted barns is extraordinary. We have high-end technical businesses, hospitality and national charities where once we had cowsheds.
Many of those businesses now operate internationally. Whatever the result of the referendum, our businesses need an easily accessible market for trade in Europe and strong global trading connections. Bicester village is the most visited attraction outside London for Chinese tourists and is known to many well-dressed Members of this House. All this is, in part, down to our very fortunate geographical position. We benefit from superb road and rail links, with which I am, as a commuter who lives in the middle of the constituency, very familiar. We also have the excellent Horton general hospital, where I was born, which now boasts more consultants than ever before.
It does not surprise me that so many people want to move to our area and join us. The challenge facing us over the next few years is how to manage unprecedented expansion across the area and to ensure that Bicester can blossom into a garden town. We must provide new infrastructure and work hard to ensure that we preserve what matters to us while building for the future.
Although I love my home, I am not blind to its problems. I am proud that this summer, for the first time, students in all our secondary schools will finally be able to take A-levels, but we must raise aspirations much higher. Child sexual exploitation has been a problem for us, but it is being recognised and tackled at all levels, not least by the changes I hope we will make following today’s debate.
As the mother of two girls, I am acutely aware of the pressures now heaped on our children in the social media age. Creative measures to build their self-worth and to protect them must be a priority for us all this Parliament. Only by tackling these difficult issues can we create the one nation we have pledged to deliver. Compassionate Conservatives, such as my predecessor and my father, know that the marginalised and vulnerable must be protected for society to thrive.
As a Conservative, I am committed to standing up for the rights of the individual. I am fortunate to have had a front seat in courts for the development of human rights law over the last 20 years. When I started out as a young Government lawyer, protecting issues of national security, we used to joke that we represented “the powers of darkness”. Since then, battle-hardened by so many inquests into the deaths of servicemen killed fighting for us, those who died in the 7/7 bombings and, more recently, Alexander Litvinenko, it has become ever clearer to me that our Security Services are nothing of the sort. They have been proved repeatedly to be both efficient and decent, and a great example of the values we hold so dear in this country. They, and others in our civil service, get on with the business of protecting us for modest salaries and little public recognition. We are lucky to have them.
We face a grave combination of threats. We must not allow those who mean to harm us to exploit any credibility gap in our regulation of investigatory powers. Checks and balances are welcome, but the process must not become so burdensome as to result in delays that mean we cannot respond to threats as quickly as we need to. As a lawyer, married to another lawyer, I am of course very comfortable with the idea of judicial oversight! This is precisely what judges are trained for and able to provide and they are very good at it, but the system must retain sufficient flexibility to enable us to act at great speed when necessary.
I am indebted to my pupil master, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), for his support throughout my legal career. I was amused to note that he, and several of the initiates on the Opposition Benches, were happy to admit that they find the existing regulatory framework somewhat difficult to understand. I share their concerns, but at this stage of my parliamentary career, I am not going to make any such admissions! Going forward, I would add that we must make sure that the language used is wide enough to encompass threats that have not yet materialised—whether or not they be at a school sports day. Technology is moving faster than regulatory drafting.
Our regulation of investigatory powers should be seen in the wider context of protections that we are fortunate to enjoy in the United Kingdom. As a nation, we should be proud of our record on human rights. In the 800 years since the signing of the Magna Carta, our perceptions have quite rightly evolved. The greatness of the common law is that it has evolved with them. The European convention on human rights is a masterful document, and we must remain a signatory to it, but it is very much a product of the cataclysmic events that it was designed to prevent from re-occurring. In this country, the courts are unable to quash an Act of Parliament. It seems we need to re-state that, while our courts should have regard to the decisions of the ECHR, these are on the same footing, and Parliament is sovereign. I am pleased that the Government are consulting wide legal minds in a variety of venues on how to take this forward.
We can now, if we wish, formulate rights for today—including, for example, parental rights and those of children—and we can discuss sexuality and disability rights in a way that would have been unthinkable 65 years ago. I hope that, in so doing, we can deal with some of the more unwieldy aspects of the Human Rights Act. I have seen how the principle of extraterritoriality adds to the burdens on the soldiers whom I was so proud to represent, and how the interpretation of the investigative obligation under article 2 has benefited lawyers rather than bereaved families. I have seen those who face the enemy with bravery quail at the idea of a significant disclosure exercise. We must not allow excessive requests for paperwork and over-burdensome oversight to become themselves deadly weapons.
I am, as I said, battle-hardened, but not battle-weary, and I look forward to fighting hard to represent the people of north Oxfordshire in the years to come.
I commend the hon. Member for Banbury (Victoria Prentis) on her maiden speech. Listening to her description of her constituency, I thought that in many ways it sounded much like my own. I must try to visit it at some point during the years ahead.
Thank you, Madam Deputy Speaker, for allowing me to make my own maiden speech. I look forward to undertaking the duties with which my constituents have entrusted me, and I shall seek to use every possible opportunity to promote the issues that are most important to the communities that I represent. I thank Members in all parts of the House for the warm welcome that I received on my arrival here, and I especially thank my induction buddy, David Nicholas, who got me off to the best possible start of my tenure.
I also pay tribute to my predecessor, David Hamilton. Many Members will know David of old, as he was a Member of Parliament for 14 years. I am fortunate in that I have known David for a large part of that time, and have always found him very easy to get on with. I do not know whether that is due to the fact that we have never actually stood against each other, but it has certainly made things a lot easier. I welcomed the warm comments that David made to me about my successful election. While we may disagree on many matters, I think it safe to say that we are very much in agreement on the importance of representing our constituents in the House of Commons.
I am the first SNP Member to be elected to this House from Midlothian, and the first non-miner for decades to represent it. In many ways, that reflects the wider changes that we have seen in Midlothian over the years. Ten years ago, there was not a single elected SNP representative there. Nine and a half years ago, I was elected to Midlothian council in what became a process of gradual growth. In 2007, there was a group of six on the council. In 2011, both Members of the Scottish Parliament returned as SNP members. In 2012, the SNP took the lead in Midlothian council, and at the time of the general election I was its leader. It has been quite a journey over those 10 years.
Today, Midlothian is one of the fastest growing parts of Scotland. The growth of world-leading animal science at the Bush, the reintroduction of the Borders railway—or the Waverley line, as we in Midlothian call it—and the blossoming of a multitude of smaller businesses have all helped to make Midlothian the destination of choice for many. I understand that more people are employed on the site of the old Bilston Glen colliery today than were employed there at the height of the mining industry, which shows how things have moved on. However, Midlothian is still very much a community, with a strong identity which each of our towns defends vigorously, loudly and often.
I am sure you have noticed, Madam Deputy Speaker, that I am wearing a Midlothian tartan tie. There is a very good reason for that. In many ways, it helps me to paint a picture of Midlothian for the benefit of Members. The green represents the large rural landscapes and agricultural nature of the county. Although Midlothian is only a short drive from the centre of Edinburgh, people certainly know that they are there when they see the sweeping green spaces at the foot of the Moorfoot, Lammermuir and Pentland hills. The Pentland hills are, of course, the home of Europe’s longest dry ski slope. It now includes tubing runs, and those who are brave enough can try their hand at a “rolling haggis”.
The blue represents the reservoirs in the surrounding hills, while the twin pale blue lines represent the rivers of the North and South Esk. The gold thread represents the grain that made Midlothian the breadbasket of Edinburgh, and today we certainly have a flourishing food and drink industry, boasting internationally recognised brands such as Macsween Haggis and Stewart Brewing, which I confess is a personal favourite of mine.
Of course, there is also the black—who could miss the black? This represents the coal, first mined by the Cistercian monks of Newbattle abbey, founded by them in 1140. Coal formed a key part of the history of Midlothian until the late 1980s, which is also when I moved there, and Newbattle abbey is the home of the Declaration of Arbroath—the very place where it was drafted by the Abbot of Arbroath. That is certainly something I wish to take forward in the years ahead. My county is deeply proud of its heritage, and I invite all Members to visit many of its tourist attractions, from the National Mining Museum to Rosslyn chapel, made famous by “The Da Vinci Code.”
I am not the first person to be elected to this Chamber from Midlothian in such a stunning political landslide. In 1878 Midlothian elected W.E. Gladstone, following his decision not to stand again for Greenwich. He decided to challenge the incumbent, Lord Dalkeith, and his Midlothian campaigns of 1879 and 1880 engaged the population in a way that was uncommon for the time. In 1879 Gladstone was reported to have given some 30 substantial speeches, said to have been heard by almost 87,000 persons. I cannot claim to have had anything like that number at the hustings in which I participated, but there are similarities in our general approach. I, like colleagues, was very keen to get out, to have meetings and discussions with people—not simply to have invited audiences at closed-door meetings—and to engage the population. Gladstone was determined to take his message to the people, which I shall look to continue and drive forward as I undertake my new role as the MP for Midlothian. Gladstone’s foresight in that regard leads me to wonder what he might have made of today’s social media. No doubt he would be one of the top Twitterati, with thousands of followers hanging on his every word, and perhaps some of us treated to a description of what he was eating for his tea every night.
As I look to follow in the footsteps of those who have come before me, I will do so in my own way. I am not here to settle down; I am here to make a difference to the community that has placed its trust in me. I therefore ask hon. Members to consider what Gladstone might have thought about the investigatory powers Bill, which will be presented in draft form in autumn 2015, followed by a substantive Bill in 2016. In line with my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), I welcome much of the Anderson report, but I have some real concerns about some of its content and strong feelings, as my hon. and learned Friend does, about any potential snoopers charter, thought police or mass spying on the public at large. We need to be very careful about how we take these issues forward.
My predecessor, David Hamilton, was himself a victim of snooping during the miners strike, an action that was rightly referred to in this Chamber, with a call for a full inquiry and the release of suppressed papers and a public apology to the miners and their communities. Sadly, such actions, along with blacklisting, are still issues today, and we need to ensure we do everything we can to tackle them. I urge Members to bear that in mind when we consider the findings of the Anderson review.
My predecessor said in his maiden speech that
“as we meet the new challenges, I hope that we will not forget the values for which many of us came into politics—free education, a free health service and support for the weak in our society”.—[Official Report, 12 July 2001; Vol. 371, c. 1014.]
I wholeheartedly agree with Mr Hamilton on those points, as I hope many in this Chamber do, and I look forward to working towards those goals.
May I say what a pleasure it is to follow the maiden speeches we have just heard from my hon. Friend the Member for Banbury (Victoria Prentis) and the hon. Member for Midlothian (Owen Thompson)? Given their contributions, I am sure they are both embarking on very solid parliamentary careers.
One of the most striking things about the Anderson report was the early chapters describing the technology landscape that we face across the world and that is faced by our security and intelligence services. That landscape is changing almost daily in its innovation and capabilities: new applications are emerging; new methods of encryption are being developed as we speak; and more and more data are travelling around the world, connecting people together and often connecting our enemies together. In the past 25 to 30 years, technology has provided massive opportunities for our society, but it also represents a profound threat to our future national security. It provides opportunities for our enemies—for countries operating and wanting to develop cyber-attacks against our infrastructure; it enables terror groups to communicate below the radar in encrypted chatrooms on the dark web; and it allows networks to develop which are difficult to detect and to analyse.
Before I came to this House, I worked in the IT and technology industry for 20 years and I have seen the changes taking place. Our enemies are very skilled in the use of this technology. They use it to disseminate their message through social media and through other networks. They are very skilled at creating methods of cyber-attack and at avoiding detection, and they are becoming increasingly skilled in collaborating across the world. The key challenge facing us, therefore, is: how do we respond to that ever-changing and complex landscape, and how do the Government and the state respond?
As other hon. Members have said, David Anderson’s review is an excellent, magisterial piece of work, which really sets out the landscape. He focuses on the fundamental principles we need to be following to ensure that our security and intelligence services have the tools necessary to do the job, within a legal framework that not only protects privacy and the freedom of the individual, but, as other hon. Members have said, is integrated under a single new law which is comprehensible. Our enemies can use technology flexibly and innovatively, and can respond to new trends without constraint, so the Government and the state face a challenge because we cannot afford to be static and unresponsive in the light of the new challenges we face, as ultimately our citizens will pay the price.
The Anderson review is therefore right to call for a new set of laws—or a new law—that consolidate the myriad different pieces of legislation that have built up over time; clearly articulate the correct balance between enabling our security and intelligence services to do their jobs and having the necessary transparency; are written in a language that a layman can understand and which is comprehensible; and that ensure that we have a framework where not only can the security and intelligence services operate, but where the police and other public bodies are clear about their legal responsibilities and operate proportionately.
The freedom of the individual and freedom of expression are absolutely fundamental to our democratic society. But a mature democratic country such as Britain, with all the connections that we have around the world, needs to have the capability and the framework to combat its enemies, wherever those enemies may manifest themselves.
As David Anderson says in his report, it would simply not be acceptable for a modern democratic society to allow paedophiles, for example, to operate on the dark net with guaranteed impunity, or to allow terrorists to render themselves undetectable simply by selecting an application that encrypts their communication history so that it is inaccessible. It would not be acceptable for a modern democratic society and Government to cede responsibility, and say, “All this is too complicated and we will allow our enemies or criminals to act with impunity.” But we do not have to become a totalitarian society to achieve our goal. As David Anderson also says, if the UK is to set an example to the world, it will not be by withdrawing from those dark spaces that we see emerging on the web, but by demonstrating that our democratic society has the ability to patrol those spaces in tightly defined circumstances and with sufficient safeguards against abuse. That is one of the fundamental underlying principles that needs to drive our thinking when we come to debate the new legislation that will be introduced in the autumn.
As the Government consider the recommendations made by Anderson, the challenge for us all is to enable a debate to take place, so that the state can engage in the complex battle against very intelligent enemies, especially those operating in this newly emerging dark space on the internet. That dark space has the danger of allowing our enemies to act with impunity. Fundamentally, we need to create the appropriate legal framework to ensure that our enemies are held accountable for their activities, because that is what a democratic society demands.
I thank you, Madam Deputy Speaker, for giving me the opportunity to make my maiden speech as the newly elected Member for Falkirk. It is an immense privilege to follow the hon. Members who have set such an incredibly high standard today and in the recent weeks. I thank the staff in the House and my buddy, Charlotte Every, for their unending patience in showing us around these buildings. Some of us have blisters on our feet having lost our way so often.
The constituents of Falkirk elected me by a large majority, for which I humbly thank them. However, nice though it would be, I do not believe that that was down to any personal qualities that I may have. [Hon. Members: “Ah!”] Well, I am not exactly tall, thin and good looking, but I do the best with what I have. My majority speaks to the desire for change that we have seen expressed so passionately by many people, both last year in the referendum and in our recent general election. It will be my honour to represent every individual in my constituency regardless of how they voted. I will endeavour to work on their behalf, to the very best of my ability, now and throughout the years ahead.
As is customary, may I offer my best wishes to my immediate predecessor in Falkirk, Mr Eric Joyce? He is an able man who has been through some difficult times. In the words of Oscar Wilde, it is worth remembering that
“Every saint has a past, and every sinner has a future.”
I wish him peace and success in his future endeavours.
Before Mr Joyce, Falkirk’s representative in Parliament was Mr Dennis Canavan. Dennis served the constituency tirelessly and was respected across the House. When he announced his retirement before the 2007 Scottish Parliament elections, he had completed a combined 33 years in Westminster and Holyrood. Particularly close to his heart was his determination to end complacency in politics and remind us that those elected to serve the public should remain hungry for social justice and civil liberties. I draw inspiration from his desire to tackle all forms of inequality.
Madam Deputy Speaker, I believe that if you want to change the world, you get busy in your own little corner. At a grassroots level in Scotland, people have become very busy. People are involved in politics as never before, with public meetings and community activism. Some are just accidental activists and we, the SNP, are largely supportive of the Anderson report, which protects those civil liberties.
The Scottish National party has a soaring membership with more women members than men and a wonderful strong and honest leader, a lawyer herself, who has helped the democratic renewal we have seen since last year’s referendum. That should warm the hearts of all in this House, regardless of the political tribe to which they belong. I believe that our voters tired of “politics as usual”. Too often, they see empty promises and stale rhetoric in place of principle and action. There were lofty thoughts and lofty words, but we also need deeds. The sense of this House as remote from the lives of ordinary people and disconnected from the challenges and difficulties they face every day is real, should concern us all and must be addressed. The introduction of a snoopers charter would make politicians ever more remote from those who they represent.
What we saw in Scotland in May was an appetite among voters to be represented by people like them, who have lived and worked in the communities that send them to this House. I have not only served as a local councillor since 2005 but have run a barber shop in the village of Denny and Dunipace in my constituency for nearly 50 years—do not say that I do not look my age. Shortly after being elected, while having a wee blether in my barber shop, one customer pointed out that I should perhaps replace the shop’s red bench with a green one. I asked why, and he said that people might think that I was getting a wee bit overly ambitious. I am referring to the place next door.
I understand only too well the pressures and constraints of running a small business in good times and bad. There are more parallels between being a barber and an MP than anyone might imagine—[Interruption.] Let your imagination run wild. Both require listening closely to public opinion and, where possible, acting on it. There is also a great deal of hot air and we have to do our best, sometimes with not very much to work with—although none of my hon. Friends has that problem. Cuts are also a key part of my daily routine, but I can assure you, Madam Deputy Speaker, that they are not the ones that the Chancellor favours.
Falkirk is situated in the beautiful central lowlands of Scotland and lies almost midway between the cities of Glasgow and Edinburgh. It has a proud history, having been at the very centre of the industrial revolution and of Scotland’s iron and steel industry. The days of producing cannons for the Royal Navy and beams for the early steam engines might be behind us, but over the past 50 years Falkirk has emerged from some hard days to become a modern cultural delight. There is an ongoing transformation in which art, industry and innovation have combined to create a powerful magnet for tourism.
The Kelpies are towering steel statues that represent a mythical Scottish water spirit held to possess the strength and endurance of 100 horses. They are the largest equine sculptures in the world and dominate the skyline, speaking to the animals that pulled the wagons, ploughs, barges and coal ships that shaped much of my constituency. They also epitomise the endurance of a community that is finding its voice and can be optimistic about its future.
The Falkirk wheel is a marvel of modern engineering that ties together the present technical innovation with the history of Falkirk’s incredible canal systems and waterways. My constituency is also an area of outstanding natural beauty peppered with historic gems, including the Antonine Roman wall.
The Falkirk constituency, its villages and towns, has suffered due to the austerity measures pursued by the Conservative party. It is austerity and its harsh consequences that I am here to fight every step of the way. Anything that threatens the wellbeing of my constituents and their communities will be absolutely, totally opposed by me. Why should society’s poor pay for the mistakes of society’s rich?
We have a threat to my area and across Scotland: principally, shale gas fracking. Scotland has a worldwide reputation for the purity of its water and a huge and growing food and drink industry that relies on that reputation. Nothing should jeopardise it. Fossil fuels cannot last forever in Scotland. We can make the transition from fossil to renewable energy through investment, research and development, but we need control of our own energy resources. Those powers need to be transferred to the Scottish Parliament now.
The next five years that I serve here are for the Falkirk bairns. I can assure this House and the community of Falkirk that I will be very busy in my own little corner.
Thank you, Madam Deputy Speaker, for calling me to make my maiden speech in this important debate. It is a real pleasure to follow the hon. Member for Falkirk (John Mc Nally)—a small business owner like myself, who I am sure will make a great contribution to this House—and the hon. Member for Midlothian (Owen Thompson). I am proud also to be following my hon. Friend the Member for Banbury (Victoria Prentis), who made an excellent speech. I think my hon. Friends will agree that she will be an asset to this House.
I feel truly honoured to be standing here today, charged with the privilege of representing the very constituency in which I was born and bred. I follow a line of representatives who were of an independent nature and character—[Laughter.] My immediate predecessor, Mark Reckless, worked hard to win back the seat for the Conservatives in 2010. His steadfast position on Europe will be remembered in this House. He gave his constituents a chance to have their say in a by-election dominated by that position, in which he was victorious, but he also gave me an opportunity that I never thought I would have: the chance to stand as a candidate to represent my home towns.
My wonderful constituency and my fellow constituents have been thrown somewhat into the spotlight in recent months, with the eyes of the nation and numerous news agencies watching us. To some, it felt like our towns were experiencing a mini-invasion. To use a phrase coined by the BBC, this was the start of the battle for Rochester and Strood. The people of my constituency are resilient, forthright and determined, and I am immensely proud of the way they had their voices heard and how they dealt with the focus put on us in that period. However, after a short interlude, they decided that the leadership and the future prosperity of our country were more than a single issue—something that the people of Rochester and Strood were not prepared to gamble with.
My constituency is steeped in maritime, military and industrial history, and has a diverse landscape and community. It forms part of the Medway towns and includes Strood, Chatham, the old city of Rochester and numerous surrounding villages. The area is named after the tidal River Medway, which meanders through them. Over the centuries, that natural resource has shaped the development of the landscape and the lives of the people who live there.
In Rochester, our magnificent Norman castle and cathedral have been well documented, but the House may not be aware that we are also blessed with Upnor castle—an Elizabethan fort built to defend warships moored on the river, where in 1582 Queen Elizabeth I reviewed the fleet—on the opposite bank of the river to the Royal Chatham dockyard, which in its heyday was the most important shipbuilding and repair dockyard in the country.
It is a lesser-known fact that it was on the River Medway that one of our most famous 16th-century seafarers, Sir Francis Drake, learned to sail. He went on to circumnavigate the world, defeat the Spanish armada and become a Member of Parliament. Given that I, too, learned to sail on the River Medway, and have become a Member of Parliament, one does wonder where this path will take me.
There are many subtle reminders of past industry in my constituency, none of them greater than the chalk cliffs that show themselves to us every now and then—a reminder of when cement works were scattered across the towns of Medway. That cement was shipped by barge to grow an expanding London, and was most notably used in the reconstruction of San Francisco after the great earthquake of 1906. There is also the old slipway at Borstal, where the Short brothers would launch their seaplanes, built at the factory, and the car park in Strood, where Aveling and Porter once stood—the company that became the largest manufacturer of steamrollers in the world.
The ingenuity and entrepreneurship of the hard-working people of my constituency have created a local economy where small enterprises thrive and grow. Since Labour was in power, unemployment has fallen by 46% and 6,200 apprenticeships were started; there are over 10,000 across the Medway towns. Our future economy is intrinsically linked to the provision of education and skills to our future generations.
I congratulate this Conservative Government on their determination to challenge all educational establishments that are not delivering for our children. As a Medway councillor, I held the educational improvement portfolio. Outcomes for our young people have not been what they should. Often I have seen the interests of the adults involved in underperforming schools put before the outcomes for the young people they served, and being a barrier to prompt improvement. Our schools community must be led by inspirational professionals who have high expectations and aspirations for the young people of my towns. I am a local comprehensive school girl from a working-class background who has worked hard, run her own business and become a Member of Parliament. My journey is one that every young person in my community should feel is possible for them, with the values, skills and experiences they receive, which should prepare them to be the next generation to see Rochester and Strood through changing times.
I welcome today’s debate. We live in a technologically advanced world, and it is right that our security services and police should have the tools to tackle the threats that we face. I have a sister who is a talented social worker, and through that connection have had the honour of working with some wonderful children who have come into our care system. All too often, our young children have been pushed from pillar to post for long periods while decisions are taken about their future care plans, with further lengthy waits to be matched with new parents. I know one young person who had the system and the timescales fail her at a young age. That is simply not good enough, and it is right that Ministers are looking at ways to address this.
My sister and I have taken very different paths, but we have both thrived because of the love and stability of our mother and father. It was our parents who gave us the tools to succeed. I want every child to be as lucky as I was to experience the love and stability that a permanent family can bring, so that our children can thrive, and their future life chances are no longer uncertain. The safety of our young people is of paramount importance, so we must have powers to investigate and tackle criminals who target and exploit our vulnerable young people; they must be thwarted and brought to justice.
I have much to focus on over the coming Parliament—supporting my right hon. Friend the Prime Minister in his renegotiations on Britain’s future with Europe, working with colleagues and leaders at Medway hospital to build on the improvements we are now starting to see, protecting our beautiful Hoo peninsula, the fine agricultural land, marshland habitats, and our villages from overdevelopment, and continuing to make it quite clear that we are not an extension of London and no airport is wanted in Rochester and Strood. As mentioned previously, we, the people of Medway, are determined and we like to win our battles.
Finally, I would like to bring it to the attention of the House that it is 45 years since the previous Conservative woman was elected to represent the constituency that preceded Rochester and Strood. Dame Peggy Fenner was first elected to this House in 1970, a formidable women, remembered for her fierce opposition to the closure of Chatham dockyard in the 1980s. She asked the Defence Secretary of the time:
“Does my right hon. Friend believe that the people of Rochester and Chatham elected me to support a Government that would do what has just been done to their dockyard? My right hon. Friend need not reply. I shall tell him the answer: they did not, and I will not.”—[Official Report, 25 June 1981; Vol. 7, c. 391.]
Sadly, she passed away last September at the age of 91. I hope I can follow in her footsteps, being also a strong Conservative woman, and be a formidable defender of the needs of the people in my constituency, Rochester and Strood.
I congratulate the hon. Member for Rochester and Strood (Kelly Tolhurst) on an excellent and forthright maiden speech, and I pay tribute to all Members who have made maiden speeches this afternoon, which were among the best that I have heard.
I welcome the debate this afternoon and David Anderson’s report. These are important issues and they have become pressing. I was the Director of Public Prosecutions for five years, had a great deal of exposure to the exercise of investigatory powers and recognise the background that David Anderson sets out in his report. There has been a long-term shift from telephone communications via UK service providers towards internet-based communications through overseas service providers. Encryption capability has changed and the law, as I discovered, is not as clear or as comprehensive as it should be.
The Snowden revelations have given us a line of sight on this important issue. There will be tension in this debate that is picked up in this House. It is laid out in David Anderson’s report. As the volume of electronic communications grows, the authorities, on the one hand, understandably fear the emergence of new channels of communication which cannot be monitored, and thus they seek new powers. Privacy advocates, on the other hand, raise the spectre of a surveillance state. That tension is not unfortunate. It is welcome and necessary in a democratic society and should play its part in our debates. Striking the balance in the new draft Bill will be critical.
As the Home Secretary said when she last spoke on this issue on 11 June, it is impossible to have that debate without first considering the threat that we face as a country. This is not the place for me to detail that threat, but when I was DPP I was asked about the importance of communications data in prosecuting terrorist offences and I provided that information to the Government in a letter. David Anderson’s report provides an update on the information that I provided and quotes the Crown Prosecution Service evidence as of 1 October 2014. That gives a snapshot of the recent prosecutions.
The CPS evidence shows that, in 26 recent terrorist cases, of which 17 have thus far concluded with a conviction, 23 could not have been pursued without communications data, and in 11 of the cases the conviction was dependent on those data. One of the cases that I oversaw as DPP has already been referred to, Operation Overt. That was the operation that involved thwarting a co-ordinated suicide plot to bring down seven transatlantic flights at the same time, using liquid explosives. The plot was thwarted by the careful and painstaking work of the police and security services, and the case was then prosecuted by my staff in the counter-terrorism team. The ability to access communications data was vital to the successful outcome of that important case.
However, it would be wrong to conduct this debate on the basis that it is only in terrorist cases that communications data are relevant, because they are used widely in cases of serious organised crime, online fraud and child sexual exploitation. That is why I have always argued that investigators and prosecutors need to maintain the capacity they have, and that any reduction in their capability might jeopardise future prosecutions.
Proportionate surveillance and interception are vital to saving lives and to the successful investigation and prosecution of serious crime. That is why I and others have listened carefully to the case for change made by the police and the security agencies, and why I think that there is now near consensus that reform and extension of investigatory powers are needed. But—and it is a big but—as the case for greater powers for our police and security agencies becomes more powerful, so too does the case for strong checks and balances. The guiding principles that must take us through that are clear.
First, the powers to intrude on privacy must be provided by accessible and foreseeable laws. In that regard, we must be clear that sensitive powers need to be fully declared before the law is enacted. Secondly, such powers should be used only when their use is necessary and proportionate. The burden is on the Government to establish necessity and proportionality when they bring forth the draft Bill, and it is on the police and other agencies each time they exercise their powers. Thirdly, authorisation and oversight must be clear and comprehensive. Fourthly, there must be an effective remedy for individuals whose rights might have been infringed.
Against that background, I welcome David Anderson’s recommendation that the existing authorisation and oversight regime should be replaced by a system of judicial authorisation, as has been touched on in this afternoon’s debate. It is a step change, as it will change the practice that has been in place for many years, but I believe that it is the right step. David Anderson sets out the arguments for and against the change. It is not a question of whether the Secretary of State or the judges can do the function, because they can, and it is not to call into question the good faith in which the powers have been exercised until now; it is a step change that is needed for the reasons set out in David Anderson’s report.
On the vital question of accountability, David Anderson sets out why, in truth, the argument about accountability does not really stack up, for some of the reasons that have been alluded to this afternoon, because ultimately the limitations on looking at the material are such that, whoever exercises the power, the real accountability is with the Investigatory Powers Tribunal. I think that is a step in the right direction. I recognise that it is a big step and that it needs to be carefully debated, but it adds considerably to the oversight and is in keeping with the extension of powers that is sought.
I also welcome David Anderson’s recommendation that there should be no question of progressing proposals for the compulsory retention of third party data before a compelling operational case has been made. It is now for that case to be made by those who want to make it. Those recommendations are consistent with the guiding principles that I have just set out.
In my view, those guiding principles also need to be applied to the difficult and possibly more controversial areas where David Anderson left room for further debate, recognising that his was not necessarily the last voice. They relate to the distinction between content and communications data.
In the first instance, David Anderson recognises that there needs to be a review of the borderline between content and communications data. That review needs to be open and inclusive, and it needs to be carried out urgently, because this matter crops up in an operational context. When the review is complete, a final decision can be taken on whether the current distinction is maintained. However, I am acutely aware of the ramifications for authorisation and admissibility of evidence if there is any alteration of that distinction.
Secondly, there is bulk data collection; I do understand how this works. David Anderson acknowledges that the question of whether the current section 8(4) regime is proportionate for the purposes of article 8 of the European convention is yet to be authoritatively determined by the European Court of Human Rights, but I am not sure that this House can duck the issue on that basis. The guiding principles have to be applied. Bulk data collection is a huge power, and if it is to be included in the draft Bill, then a compelling case has to be made for its necessity and proportionality. That is the ongoing challenge on bulk data collection.
As for the treatment of journalistic material and legal professional privilege, both of those rightly attract special protection. David Anderson has said that there must be no no-go areas, and I am inclined to the view that he is right, having myself seen material that falls into both categories. If he is right, and if that is the position under the draft Bill, there must be very close scrutiny of the provisions to ensure that the protection that is rightly in place for journalists and for clients of lawyers is properly protected according to the guiding principles.
It is a pleasure to speak in this debate and to follow the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who brought to bear his experience of the absolutely vital nature of communications data to securing the prosecution of those who are serious threats to our nation. I thank him for that.
The homework for this debate was “A Question of Trust”, the Anderson report; and “Privacy and Security”, the ISC’s report. The third bit, the report by the Royal United Services Institute, has not come out yet, so we are having the debate before all the homework is available to us.
I want to focus on the element of threat covered in the Anderson report. His remit was to focus on the threats, the capabilities required to deal with them, the safeguards on privacy, the challenges of technology, and issues relating to transparency and oversight. Two of those five issues relate to threat. Interestingly, the responses by groups and organisations interested in this subject—I have read at least two, including one from Liberty and one from Big Brother Watch—hardly alluded to the threat element at all; they focused entirely, and perhaps understandably, on privacy. To some extent, Mr Anderson gave them some cover for that, because, to quote him directly,
“claims of exceptional or unprecedented threat levels—particularly if relied upon for the purposes of curbing well-established liberties—should be approached with scepticism.”
However, he did not go on to spell out what those well-established liberties were, particularly in relation to the internet and communications data, which are still new to our society. He went on to ask what are the uniform views of the law enforcement community. The Government could help him in establishing what those views are. The Minister might well want to comment on that.
The threat is of course enormous, and it is not just terrorism, alarming as that is. Members have alluded to at least two other elements: they include internet pornography and, perhaps most emotionally, the whole business of sexual exploitation of children. It is hard to believe that after everything that has happened in Rotherham, with all the reports on that, and in other cities across our land, anyone could imagine that that threat is not serious.
I therefore share to some extent the amazement of Lord Carlile, the Liberal Democrat peer, who, after a decade as the independent reviewer of terrorism legislation, was shocked when his own party leader vetoed the Communications Data Bill in the last Parliament. He implied that the veto was a political decision rather than one based on the merits of the case. I hope that the Minister, who is perhaps not renowned for his libertarian instincts, but who is renowned for his staunch support of the liberties of our people, will touch on how vital that Bill is as part of our armoury to face the threats.
There is a lot of agreement between the Anderson report and the Intelligence and Security Committee’s report. First, on the complexity of the existing number of laws, when my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) says that the laws are virtually incomprehensible, it is surely time for a single, united Bill. When my right hon. Friend the Member for Cities of London and Westminster (Mark Field) says that he has his own concerns as a member of the ISC about the way in which different agencies might be able to “arbitrage” between different Bills, I think we can all agree that the Government are surely entitled to conclude that it is time for one overriding umbrella Bill.
Secondly, the two reports were not exactly the same on the issue of reform of the commission system, but it seems to me that everyone agrees that it would be simpler and clearer to have a single commissioner with overall responsibility.
There was a difference of opinion on warrants and whether they should be subject to judicial authority or continue to be the responsibility of Ministers. Mr Anderson raised two interesting points. The first was that, whatever the system is, it must have public confidence. I am not really aware that the current system does not have public confidence, but perhaps that should be explored. Secondly, he intimated that a system of judicial responsibility would make co-operation with US technology companies easier. I had not heard that before. It seems slightly improbable, but perhaps the Minister will comment on it, because it is clearly an important issue.
Thirdly, the Anderson report—and possibly the ISC report—mentioned the domestic right of appeal. I am sure that the Minister will want to say something about that. Instinctively, I feel that it is a good idea, and others probably do, too.
There was less agreement between the reports on some of the other elements. I have touched on the Communications Data Bill. Clearly there is a need to make a strong operational case, but none of us should be in any doubt about the critical role that such data play in the prosecution of serious threats. I hope that elements of the Bill will be incorporated into the eventual law.
There was also a question mark over whether the framework for interception of external communications needs to be compliant with the European convention on human rights. That is an interesting question in itself and in relation to other activities the Government are pursuing. The Minister might want to comment on that.
There were areas of agreement in the two reports we were invited to study that the Government can take forward. There were some queries of the Government’s own responses, which they may wish to mull over and respond to. Mr Anderson also raised other question marks and issues that will need to be considered further before the final Bill emerges.
There is clearly a significant lobby group focused on liberty issues, which we all understand and all think are important. However, I want to finish by emphasising that, when we consider the details of the new law, the new commissioner, the right of appeal, the collection of third party data and so on, I hope that this House and the Minister will bear it in mind that, if a terrorist blows someone or something up, or if young girls are groomed, exploited and damaged, it is not the libertarians who will clean up the pieces, but the families of those physically or mentally scarred, the emergency services and the communities around them. It is that threat that our agencies strive against. Our task—balancing the privacy, carrying the quiet majority with us—is surely to give our agencies the tools to do the job. Those tools, by common consent, are currently not in the best shape, and in reshaping them let us never forget the vital task for which we must design them.
I am chair of the cross-party National Union of Journalists parliamentary group, and for the last two years, with Government co-operation, we have gone through the highways and byways of each piece of legislation—ranging from the Police and Criminal Evidence Act 1984 to RIPA to DRIPA, then on to the Counter-Terrorism and Security Act 2015—to see how we can best protect journalists and their sources. I thank the Government for their co-operation throughout. We have had detailed consideration of the codes of practice to each piece of legislation, and with our lawyers meeting on a regular basis, and with the Society of Editors, we have tried to move the debate forward.
On the protection of journalists, I say to the hon. Member for Gloucester (Richard Graham) that an issue of confidence was raised in this House by all parties. As he may recall, that stemmed from the introduction of PACE procedures, whereby there was an understanding in Government that journalists and in particular, their sources, should be protected as an inherent part of protecting our democracy. Under PACE, there was a protection whereby, if there was an application for seeking information, a journalist would be notified. They would have their day in court and be able to represent themselves, and there would be a right of appeal. That process was generally accepted by all, except some authorities.
Many of us were shocked 18 months ago when we received reports that to avoid the use of PACE, a number of authorities—the police, the intelligence services, and even local councils—had used RIPA to avoid the due process of applying, judicial overview and the right of appeal. The scale of the use of RIPA by individual authorities was immense, and I think it shocked us all when that was exposed. Local councils were using it to spy on their own staff or even people who were making applications for local schools, and so on. There was shock on both sides of the House and a feeling that that was inappropriate use of the legislation.
We then went through discussions about DRIPA. Through the NUJ and the Society of Editors, we met the Government and applied our minds to getting some protections within the codes of practice, and eventually, under the Counter-Terrorism and Security Bill. Throughout the continuing theme was the same as in today’s debate—that there was a need to rationalise the legislation, so that not only was it effective and understandable, but that it had protections in place for those with privileged or confidential information.
Anderson has been welcomed by the NUJ and others, because it goes some way towards doing that. The NUJ’s position was straightforward: it wanted an independent judicial process. In addition, it wanted automatic and mandatory prior notification of requests for accessing information, and it wanted mechanisms to challenge an application with the right of appeal. Anderson goes some way towards doing the first, and in recommendations 67 to 69, he makes special consideration with regard to journalists. He clearly states that the designated person
“should be obliged either to refuse the request”—
when it comes to identifying a journalist’s information or confidential source, and then automatically—
“refer the matter to ISIC for a Judicial Commissioner to decide”.
The NUJ welcomes that process, but I speak briefly to make a couple of appeals on the matter. Anderson recommends that there is a code of practice or ISIC guidance that specifies:
“the rare circumstances in which it may be acceptable to seek communications data for such a purpose, and…the circumstances in which such requests should be referred to ISIC.”
I say to the Minister that it would be really helpful, if the Government are going down the route of further guidance, to start the consultation process now. Again, the NUJ would welcome access to officials to commence those discussions in advance of the publication of any such guidance.
I am grateful to the Minister; I thought that would be his response.
May I ask that, this time round, any draft guidance is published in advance of the primary legislation, so that we are fully conversant with the implications of the primary legislation in detail when we discuss it? We were not capable of doing that in the past because of the rush of emergency legislation, but it would be helpful.
One issue that is not addressed effectively by Anderson is prior notification. I accept that there are circumstances in which prior notification becomes difficult, some of which have been mentioned today. However, there needs to be wider discussion of this issue and it must not just be dismissed in the way that it was in the report. There also needs to be further discussion about the right of appeal in respect of any decisions by the judicial commissioners in addition to those that are set out in the Anderson report. I would welcome further consultation on those elements.
I will make one final point because I know that I must be brief and that others wish to speak. Anderson does, to give him his due, stress the importance of the protection of journalists and their sources, and quotes Liberty on the issue. We must remember that those are the journalists that we sometimes do not hold in great affection. They are the journalists who exposed the MPs expenses scandal and who expose corruption. They do so on the basis of information that is brought to them by sources that need to be protected. The word “chilling” was used earlier. We said in the debates about the movement from PACE to RIPA that any undermining of the protection of sources would have a chilling effect and they would not come forward, thereby undermining the democratic accountability of administrations at all levels.
I am grateful that David Anderson quotes Liberty and bases his proposals on its principles, which state that a
“free press and the right to free speech is dependent on respect for private correspondence”.
If we establish those principles in the legislation that is brought forward, it will lay the basis for firm legislation. That will also inform the debate that we eventually have on the Pitchford inquiry into surveillance more generally.
Thank you, Madam Deputy Speaker, for calling me to speak in this fascinating debate. As someone who used to be involved in the media, I found the comments of the hon. Member for Hayes and Harlington (John McDonnell) and the point that the hon. and learned Member for Holborn and St Pancras (Keir Starmer) made about there being no no-go areas extremely interesting.
I am not a lawyer or a legal expert. I come to this debate as someone who was pregnant with their first child at the time of the 7/7 bombing. I remember the bewilderment and fear at the barbarity on the streets. I, too, have pressing school engagements to head to, which I am sure cameras will be recording. The debate about taking suitable pictures at such events has been had many times, because the impact of the surveillance society pervades all levels.
It is a pleasure to follow such barnstorming maiden speeches by my hon. Friends the Members for Banbury (Victoria Prentis) and for Rochester and Strood (Kelly Tolhurst).
I pay tribute to the vital work of the men and women in the intelligence and law enforcement community. Their success is often unrecognised as it is not always known about, but they keep this country safe, day in, day out.
I will make some specific points about vital areas of this key topic. This debate is a useful first step ahead of the draft Bill and the coming into effect of the sunset clause of the Data Retention and Investigatory Powers Act 2014. I welcome this opportunity to re-evaluate our arrangements in the face of the changing circumstances.
Clearly, we must balance our right to privacy with the need for greater national security. I am sure that no one here believes that to be an easy balance to strike. This country has always been the strongest proponent of freedom around the world. From being the last bastion of European freedom in the second world war to our dynamic, modern, free economy today, it is this United Kingdom that represents all that is best about a free society. Today we have the challenging task of creating a balance whereby our freedoms are not only preserved but protected from those who wish to do us harm. I am reassured that the foundation of the privacy and civil liberties board will provide an additional safeguard on our security policy.
I welcome the Anderson report, which is broad and wide ranging and has certainly given me an insight into the work that needs to be done on the draft Bill. The modern world presents new challenges for our security—challenges from terrorism at home and overseas, from cyber-attacks, from criminals and from gangs seeking to commit evil acts such as child sexual exploitation.
The importance of investigatory powers can be seen in the fact that 95% of all serious and organised crime prosecutions include the use of communications data. Skype, FaceTime, Twitter and Instagram provide immediate access to direct communications systems, and the Anderson report represents an assessment of how we must meet the new challenges in the pursuit of our future security. It is a comprehensive and independent investigation that will give us greater insight as we prepare to build the investigatory powers Bill, which I hope will ensure that there is appropriate oversight and provide stronger safeguards while updating the capabilities of our intelligence services so that they can intercept what terrorists and criminals are saying, doing and planning.
As a mum of two daughters, I want to focus on the issue of child sexual exploitation. I am proud of the work that the Government have undertaken to find and bring to justice those who seek to do harm to our children and exploit them. The men who groomed young girls in Rochdale were prosecuted using mobile phone call evidence, which showed that they had contact with their victims and association with each other. I look forward to the opportunity to contribute to the Bill and strengthen our services’ capacity to protect children from such heinous individuals.
Just last week I met in my constituency a senior member of Hampshire police, who reported to me that it is using its full investigatory powers to examine child exploitation concerns. It is fully investigating those who may have been, or continue to be, at risk. That is sleepy Hampshire, so it would seem.
I welcome the Government’s commitment to a full debate on the new arrangements, and I welcome the fact that the Home Secretary is promising to ensure that we examine the powers and responsibilities properly and do not undertake the creation of the Bill lightly. On such a critical issue, the Government have clearly shown that the combined experience of the House will have a key role in forming the new legislation, and I will welcome the further chance to scrutinise and reflect on technological changes and the full range of safeguards that we need to keep our country safe.
It is a great honour to have listened to two maiden speeches today, by the hon. Members for Rochester and Strood (Kelly Tolhurst) and for Falkirk (John Mc Nally). It is clear that at least the former is a significant improvement on her predecessor.
I am pleased to be able to speak in today’s important debate. It is clear that there is agreement throughout the House that surveillance is necessary to protect the public from the serious threats that we as a country face. However, in recent years we have gradually become aware that there is also surveillance of perfectly legitimate activity. For instance, just this week the Investigatory Powers Tribunal revealed that GCHQ had spied on two international human rights organisations: the South African Legal Resources Centre and the Egyptian Initiative for Personal Rights. Both are entirely legitimate civil liberties organisations, and are co-claimants in a legal challenge against GCHQ, alongside Privacy International and Amnesty International, brought after the Edward Snowden revelations.
The IPT ruled that GCHQ’s mass surveillance systems violated the Egyptian NGO’s fundamental rights by intercepting, accessing and then unlawfully retaining material for longer than permitted. For the other NGOs that took the case, including Privacy International, Amnesty International and Liberty—all UK-based civil society organisations that are leaders in their field—no statement was made by the IPT as to whether they were spied on. The court’s finding of no determination means either they were not spied on, or, more worryingly, they were but the spying was done in line with GCHQ’s internal rules and so, under the current inadequate law, the spying was done lawfully.
It is not just perfectly legal NGOs that have been put under surveillance, as we heard from my hon. Friend the Member for Hayes and Harlington (John McDonnell). The intelligence services routinely intercept legal privileged communications between, for example, lawyers and their clients in sensitive security cases, according to internal MI5, MI6 and GCHQ documents. We also now know that the Metropolitan police used RIPA to access the phone records of journalists to expose their sources. A number of leading civil liberties lawyers believe they have been put under surveillance by the Metropolitan police. Former undercover police officer, Peter Francis, even disclosed that Scotland Yard had a special file on the leading London human rights firm, Bindmans.
As Anderson notes in his report, there can be no fairness in litigation involving the state if one party to it has the ability to monitor the privileged communications of the other. Anderson’s report, as we have already heard, makes a serious recommendation that could help to prevent abuses of power such as these, namely his call for judicial commissioners to approve surveillance warrants. This recommendation is critical and I hope the Government take heed of it in their deliberations. Introducing impartial arbiters into the process of authorising surveillance would put us in line with the practice undertaken in other democracies, and make the system more rigorous and accountable. Clearly, this should be taken by the independent judiciary.
I also hope the Government listen to Anderson’s recommendation that legislation should not be brought back to Parliament until a strong operational case has been made. Anderson is clear that so far the Government have failed to do so.
We need targeted surveillance against those suspected of breaking the law, but the case for mass untargeted surveillance against entirely innocent British citizens has simply not been made. We need to ensure that journalists, lawyers and human rights activists can go about their lawful democratic activities without the chill from surveillance that is enabled by an overly broad law and too few legal safeguards. Both Anderson’s report and the ISC’s make the case for fundamental legal reform. I hope the Government do this in a way that respects the recommendations of both reports.
It is with some trepidation, as a non-lawyer and a technophobe, that I intrude in this debate.
I have read the Anderson report. There seems to be general support and a very clear argument for merging all the various competing commissioner offices to create the independent surveillance and intelligence commission. That should provide clarity and certainty. I have a concern, however, regarding the creation of the chief commissioner, not by dint of the creation of the position but the definition of qualification that Anderson attaches to the post. He or she
“should be a person of unquestioned professional distinction and independence”,
and yet he or she is to be appointed by the Prime Minister of the day. My right hon. Friend the Home Secretary, with the best of intention, has had a difficult job finding somebody to chair the inquiry into child sex abuse. It would be a very difficult job if we were to adopt fully the definition of that commissioner, as far as Anderson has it, to find that person. Frankly, I am not entirely sure that he or she exists. Those are my two specific observations on the report.
I have been very encouraged by the debate. I had rather expected it to be a flag-waving exercise of civil libertarians who believe that, somehow or other, prior to the enactment of the Human Rights Act, we lived in a country that could easily have been mistaken for being Nicaragua or pre-apartheid South Africa, where gangs of police roved our streets, taking people off for questioning and so on, with a very corrupt judiciary and the like.
It is worth pointing out, as have other hon. Members, that we have a proud tradition in this country of an independent judiciary and of championing freedom and liberty, which is to be encouraged. Pretending that any changes to, or repeal of, the Human Rights Act will reduce us to a banana republic is, I think, very far from the mark.
One of the more inspired appointments made by my right hon. Friend the Prime Minister was the appointment of my right hon. Friend the Member for South Holland and The Deepings (Mr Hayes) as the Minister for Security, as he entirely understands the job that needs to be done.
My hon. Friend the Member for Eastleigh (Mims Davies) clearly said that balances and judgments will always have to be made. As we see the proposals evolve through this Session and as we have our Divisions and debates, I would urge all hon. Members to keep one thing in mind. Yes, we must always maintain the checks and balances to ensure that things have not gone too far out of kilter, but we should always have at the back of our mind this one salient point. If we have another atrocity such as the one we had a few years ago in central London, or indeed in any other towns and cities, we should not have to look into the eyes of grieving relatives and communities and say, “We could have stopped that; we could have broken the chain of terrorism, but we were unable to do it because we were too concerned about the maintenance of the ‘virgo intacta’ of civil liberties.” I hope that is not an unparliamentary term to use, Madam Deputy Speaker.
We are accountable to our electorate; that is our duty. If the first duty of Government is the protection and defence of the realm, the vital role played by the security services within that must be taken into account, as other Members have made abundantly clear. In a changing landscape where technology changes every day and the terrorist or person who wishes our country ill is moving forward faster than we think they are, we must ensure that we are as fleet of foot and that there is scope within the regulations to ensure that we respond to the threats.
Finally, because we are accountable to our electorate, I am not persuaded by the argument put forward in the Anderson report that the final decision should be taken by a judge. I think that power should rest with the Home Secretary, who is, after all, accountable to this House, accountable to Cabinet colleagues and accountable to senior Committees. Yes, there should be judicial review and judicial oversight, but to put the responsibility for taking away democratic accountability in the hands of judges would, I think, be a step too far.
People in the UK face a range of threats to their liberty and security from terrorists and criminals on a daily basis. The police and the security services, in whom we put our faith to keep us safe, are not assisted in their task by the fast pace at which communications technology is advancing. Devices and applications that have become features of everyday life for our general use and pleasure have routinely been exploited by those who mean us harm.
RIPA was enacted in 2000, shortly before I went to university to study law. At first flush, RIPA looked very straightforward. It governed large proportions of the law on surveillance and interception of communication, and did not require eager students to resort to vast swathes of case law in the way that the laws of tort or equity did. On further examination, however, RIPA was indeed one of the most impenetrable pieces of legislation with which a law student could possibly have to grapple.
What is worse is that RIPA was out of date almost as soon as it was enacted. In 2000, about 27% of us in the United Kingdom were internet users, and most of us used static devices. By 2013 the figure had climbed to 90%, and most people were using mobile rather than static devices. As a result, RIPA and associated regulations and guidance have been repeatedly amended, and, while that process may have introduced necessary changes that have brought the law up to speed with changes in technology, it has not made the law in this area any more penetrable for either the layman or the lawyer. It is incumbent on the House of Commons to pass laws that can be applied, and applied straightforwardly, by those on whom we call to keep us safe. I therefore endorse David Anderson’s recommendation that RIPA and other related legislation should be replaced by one—and this time, hopefully, one straightforward—piece of legislation.
Simplifying the law in this area is important for another reason, and that is public confidence. When applied properly, RIPA offers safeguards against the unlawful infringement of article 8 of the European convention on human rights, which confers the right to privacy. While there are cases at the margins in which the courts can rightly be accused of stretching the proper interpretation of article 8 beyond its natural meaning, the interception of communications is certainly not one of them. It is a classic infringement of article 8, and one that will be lawful only when the infringement is both necessary and proportionate.
It is right for the law in this area to be reformed so that it commands the confidence of the public, but that will happen only if the face of the law is plain, if there are clear avenues for challenge, and if the overall system of surveillance and interception of communications is transparent. With that in mind, I commend the Anderson proposal for the oversight commissioners to be merged into one. The role of the unified commissioner should, in my view, involve producing clear and accessible guidance for the public on the whole issue of surveillance and interception of communications, as the Information Commissioner has done.
The proposals for reform of the Investigatory Powers Tribunal are also interesting, and worthy of careful consideration. In my limited professional experience of the tribunal, it has striven to ensure that hearings are conducted on an inter partes basis. That said, however, it deals with an area of our law that is little understood. Its procedures need to be streamlined, and that should be done through clear procedural rules to avoid the need for the public—and, indeed, lawyers—to pick through its published judgments.
Section 17(1) of RIPA prohibits absolutely the use of intercept evidence in criminal prosecutions and proceedings. That prohibition is strict, and extends even to mention of the fact of the interception. It does not just prevent intercept evidence from being used in criminal proceedings; it also prohibits its use in cases of serious misconduct by police officers, and cases in which state agents, including the police, are being sued for damages or challenged by judicial review. While I entirely understand the basis of the section 17 rule, it does little for public confidence to know that relevant, important and perhaps even decisive evidence cannot be adduced in cases in which it would have ensured the conviction of a dangerous criminal or avoided a payout to a claimant that was entirely unmeritorious. Clearly a balance would have to be struck—in some cases, it would be impossible to disclose the facts or the products of interception because it would compromise a covert tactic or put life at risk—but I think that the relaxation of the absolute terms of section 17(1) so that it can be approached on a case-by-case basis is worthy of careful consideration.
I shall not touch on the issue of judicial oversight, which has already been covered by other Members, and which will no doubt be the subject of a wider debate involving human rights organisations, lawyers, Members of Parliament and, of course, the public. Let me end by saying that, while the public do need to have confidence in the system of checks and balances that regulates our interception and surveillance system, they also need to feel confident that the state has the powers and capabilities to keep us safe from the ever more technologically adept enemies of our freedom.
There is a natural and proper tension between the desire for personal privacy and the need for national security. In this afternoon’s debate, both sides of that argument have been discussed with the calmness and clarity that the issue merits. Absolutist positions, whether libertarian or on the side of state security, are unhelpful. They may be fun in university or school debating societies, but in this place we have to think about the practical implementation of our discussions, so it is welcome that Members in all parts of the House have taken pragmatic and logical positions.
I do not pretend to be an expert on security matters, but I was part of the Metropolitan Police Authority at City Hall in London for a number of years. I sat on its scrutiny committee, which looked into the counter-terrorism and protective services work of the Metropolitan police, so in a small way I had some exposure to the security work that we demand our public servants conduct. I was, in small part, one of those people who watched the watchmen.
The speed of change in communications is both exciting and frightening. There was a time when communications interception meant snaring a carrier pigeon or steaming open a letter; those days are long passed. We are now in a world where state-of-the-art encryption technology exists not just on traditional desktop or laptop computers, but on every mobile phone and tablet that we carry around—and in forms that people do not normally think of. My sons regularly play on a games console and are able to communicate with their friends across the globe using encrypted communications technology. I am pleased to say—I am fairly sure—that they do so with entirely innocent motivations, but it does not take much of a leap of imagination to understand that people with much more sinister intent use such encrypted technology with ease. So it is not enough for people to say that the current state of affairs is good enough, and I welcome those parts of the Anderson report that highlight the fact that communications technology is moving apace. The status quo is not good enough. We are either at least trying to keep up, or being left badly behind.
I was on the Metropolitan Police Authority when the student riots that afflicted Westminster took place, and I remember how those protesters were able to move with great speed through London and, in particular, the time when they attacked the car carrying the Prince of Wales and the Duchess of Cornwall. The protesters were able to stay ahead of the police in a way that historically has not been possible. For most of the recent history of the police, they have been alone in being able to utilise peer-to-peer communications technologies; the bobby’s radio gave them a significant strategic advantage over those they sought to apprehend. Those student protesters, using BlackBerry Messenger, which, let us remind ourselves, is five to six years out of date, were able to stay well ahead of the police officers who were trying to do their duty.
I look at that incident as a very real and credible indicator of the challenge we now face at a national level. The situation where the security services are potentially behind the curve is worrying and it needs addressing. It is essential that we give our security services the tools they need to protect us, but the counterbalance of that is also ensuring that there is proper scrutiny of the work they do.
In conclusion, I suggest that our aim in this House and in this debate is to ensure that those who watch the watchmen are able to do so effectively and with real teeth, but this should not be to prevent the watchmen from watching.
Let me start by welcoming the Minister to his place and paying tribute to the excellent report we have been discussing this afternoon: “A Question of Trust—Report of the Investigatory Powers Review”, written by David Anderson, QC. He has a formidable reputation as the independent reviewer of terrorism legislation. The report ranges far wider than the areas the independent reviewer is usually required to look at. It tackles matters such as the use of the internet by paedophiles, an issue that the hon. Members for Halesowen and Rowley Regis (James Morris), for Gloucester (Richard Graham) and for Eastleigh (Mims Davies) mentioned in their contributions. It deals with the use that local authorities have made of powers under RIPA, a matter discussed by my hon. Friend the Member for Hayes and Harlington (John McDonnell). It also deals with the growing threat from cybercrime and cyber-attacks. It is a very good report and, as the former Attorney General, the right hon. and learned Member for Beaconsfield (Mr Grieve) said, it is an amazing piece of work. It contains 124 recommendations, five guiding principles and more than 300 pages, giving us a lot of holiday homework over the summer in this immensely complicated area. It is detailed and thorough, and it is a report that will assist us in the coming months in our deliberations when we start to consider the Government’s specific proposals for legislation relating to the security, intelligence and law enforcement agencies’ use of investigatory powers.
We know that the Government will be bringing forward the draft legislation in the autumn, well ahead of the sunset provisions in the Data Retention and Investigatory Powers Act 2014, which take effect on 31 December 2016. Of course the Anderson report was commissioned on the basis of an Opposition amendment when Parliament was asked to legislate very quickly to introduce DRIPA in 2014. We proposed that it was the right time for a thorough review of the existing legal framework to be conducted, as we no longer felt, alongside many others, that the current arrangements were fit for purpose. That statutory obligation was then set out in section 7 of DRIPA.
I thank the Government for finding time for this afternoon’s debate, which my right hon. Friend the shadow Home Secretary requested when the Home Secretary made her statement to Parliament at the publication of the report on 11 June. As my right hon. Friend said in her opening remarks, it has indeed been delivered “very swiftly”, and for that we are very grateful.
This debate is important because, as my right hon. Friend said, we need to ensure that Members of all parties may discuss the report fully and to foster a wider public debate to get the widest possible debate and legitimacy for the new framework. The hon. Member for South West Wiltshire (Dr Murrison) referred in his contribution to that need to engage in the public debate.
I also pay tribute to the work of the Intelligence and Security Committee, which produced the “Privacy and Security” report in March. That was a review of the intelligence agencies’ capabilities and the legal and privacy framework that governed their use. We are still awaiting the third report in this area from RUSI, a report established by the former Deputy Prime Minister, the right hon. Member for Sheffield, Hallam (Mr Clegg), who also spoke in today’s debate.
The Opposition accept the need for reform. Obviously, we need to wait to see what is in the draft legislation, which will be introduced shortly, but we are grateful to the Government for bringing this matter forward with cross-party agreement and discussions. We want a robust and up-to-date legal framework and the protection of liberty, as well as security and democracy. My hon. Friend the Member for Sheffield, Heeley (Louise Haigh) referred to that point in her contribution.
We want strong powers with strong checks and balances and strong oversight of how the system is to work. The five Anderson principles will be a key part in the development of law and the practice of investigatory powers. Those principles are: minimisation of no-go areas; limits on powers; rights compliance; clarity and transparency; and a unified approach.
Let me mention some of the contributions in this very good debate. I will start with the maiden speeches, which were of an exceptionally high standard. The hon. Member for Banbury (Victoria Prentis) told me something that I did not know about her predecessor, Tony Baldry. She said that he was the keeper of the hairspray for Margaret Thatcher. She also told us that she makes cider and keeps ferrets. I agree with her recommendation of the Bicester outlet shopping experience.
The second contribution was from the hon. Member for Midlothian (Owen Thompson) who painted a fine picture of his constituency. He talked about the importance of coal, his role as leader of the council and, rather intriguingly, the rolling haggis. Then we had the hon. Member for Falkirk (John Mc Nally) who gave a very generous tribute to his predecessor. He talked about running a shop for 50 years as a barber, and about the similarities between being a barber and a politician.
Finally, we heard from the hon. Member for Rochester and Strood (Kelly Tolhurst) who represents her home town. She talked about the similarities between herself and Francis Drake, learning to sail locally, and becoming a Member of Parliament. I just wondered how Hansard might record the parliamentary wiggle that she gave as part of her maiden speech.
We also had some learned contributions from experienced and senior Members of the House: the former Attorney General, the right hon. and learned Member for Beaconsfield; the former Deputy Prime Minister, the right hon. Member for Sheffield, Hallam; the right hon. Member for Cities of London and Westminster (Mark Field), who was a member of the ISC in the previous Parliament; the hon. Member for South West Wiltshire, with his ministerial responsibility; the former shadow Attorney General, my hon. Friend the Member for Islington South and Finsbury (Emily Thornberry); and the former Director of Public Prosecutions for five years, my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), who spoke about the practical application of the current law with great knowledge. Many Members paid tribute to the intelligence and security services and the law enforcement agencies, which work day in, day out to keep us all safe. I wish to add my tribute to the vital work that they do.
As time is quite limited, I will refer to two particular areas that many Members raised today. The first was the proposal by David Anderson on merging the current commissioners and setting up the new office of the independent surveillance and intelligence commission. My right hon. Friend the shadow Home Secretary had talked about that previously, and we welcome the idea. It will increase transparency, strengthen the role of the commissioners, raise the public profile and help to build public trust. I note that the hon. Member for Kingston and Surbiton (James Berry) also spoke about that matter.
The second issue was the proposal on judicial authorisation. The Opposition welcome that proposal from David Anderson, but we do not want to see a delay or detraction from the Home Secretary’s wider responsibility, which is to assess risk to national security and be answerable to Parliament. As my right hon. Friend the shadow Home Secretary said, the reforms will strengthen the legitimacy of our long-term framework, and I urge the Home Secretary to agree to them.
There was a mixed view in the House this afternoon. The right hon. and learned Member for Beaconsfield talked about the burden of proof being reversed in this case and said the Government needed to make the case for not accepting the Anderson recommendation. The right hon. Member for Sheffield, Hallam mentioned his surprise about the operational benefits that might arise from judicial authorisation. The right hon. Member for Cities of London and Westminster reminded us about political accountability and how important it was, but spoke about the benefit that could be gained from judicial involvement. The hon. and learned Member for Edinburgh South West (Joanna Cherry) also supported the proposal on behalf of her party. My hon. Friend the Member for Islington South and Finsbury gave her first-hand experience of the workings and worldliness of judges in balancing competing interests if they are to carry out this task. The hon. Member for Gloucester also talked about the need for public confidence in whatever system is going to be introduced. The hon. Member for North Dorset (Simon Hoare) talked again about accountability.
In conclusion, we look forward to the publication of the draft Bill and to the pre-legislative scrutiny. The balance between security and liberty should always be struck with great care and constant scrutiny, including in this complex sphere of surveillance and data communication. Whatever the difficulties, we should aspire to achieve both objectives and never one at the expense of the other. We do so in the certain knowledge that the enemies of this country want to destroy both.
May I say what an honour it is to conclude such a measured, informed and significant debate? I am grateful to all hon. and right hon. Members who participated. It has been both in tone and content—as typified by the shadow Minister’s speech just a moment ago—dignified, reflective, measured and determined to do the right thing. There is a determination across the House to get this right.
That is not surprising, given that we are dealing with very serious matters relating to the security of the nation and its citizens. That is at the heart of the national interest and essential to the common good. My hon. Friend the Member for North Dorset (Simon Hoare) made that absolutely clear in a powerful speech, made all the more powerful by his tribute in it to me. That is why I chose to mention him first.
Most powerful, however, were the maiden speeches we heard today. As the shadow Minister, the hon. Member for Kingston upon Hull North (Diana Johnson), generously said, we had maiden speeches from a variety of places in the country and in this House. I congratulate all those who made their maiden speeches, but, as Members would expect, particularly my hon. Friends the Members for Banbury (Victoria Prentis) and for Rochester and Strood (Kelly Tolhurst). Even in this non-partisan debate, I cannot help but reveal just a slight prejudice in favour of those on this side of the House.
Keeping people safe, as my hon. Friend the Member for North Dorset also said, is the primary responsibility of Government. It is a responsibility on which all else depends and it transcends partisan politics. That is an axiomatic point; there should not be party divisions about the security of our nation and its people. We must stand together, as this House at its best always does, in the national interest and for the common good. It is also important, as my hon. Friend the Member for Braintree (James Cleverly) argued, that we consider these matters in a measured way. I was pleased that those on the Opposition Front Bench acknowledged that the Government are doing just that. We wanted to have an early opportunity to explore these matters in this debate and we are determined to proceed on a consultative basis, listening to all arguments. These are not simple matters and they must be considered in that way, and they will be—make no mistake about that.
The right hon. Member for Sheffield, Hallam (Mr Clegg), whom I have known and worked with in all kinds of guises over some time, always speaks with great conviction on these subjects. He made important points about the considerations that dictate the extent to which the agencies’ capabilities may be made public. As ever, we will ensure that we make information available where it can be made available, and in that respect we are considering the recommendations in the Anderson report carefully. I understand the right hon. Gentleman’s perspective and we take that seriously.
The right hon. Gentleman and many others raised the issue of third party data. It is essential that we understand that David Anderson did not say that one thing or another should be introduced; he said only that the case should be made for that capability. I think we all agree that to legitimise the exercise, a case should be made to this House and more widely. I do not think there is any difference between us on the need to explore these matters properly and to make the arguments persuasively, precisely as he asked us to do.
My hon. Friend the Member for Gloucester (Richard Graham) made it clear that it is right to consider the issues of domestic appeal. I will not say more than that at this stage, but I note what David Anderson said about that and I note too that my hon. Friend amplified it.
Others made the point repeatedly, and rightly so, that the environment we are working in requires nothing less than that consultative and measured consideration, because it is such a challenging environment. The House should be under no illusions that the UK does not face serious threats from home and abroad. Reasonableness must be tested against reality. It was Hegel who said—it is a pity the Speaker is not in his place, Madam Deputy Speaker, because he likes it when I draw on Hegel, but I know you do too, and I am coming to one of your favourites later—
“What is reasonable is real; that which is real is reasonable.”
Matching our response to the reality of the threat we face is, in that sense, a test of its reasonableness. Recent attacks on allies around the globe show us that there must be no complacency, but that we must always be alert and ready to act. We will shortly mark the 10th anniversary of the 7 July attacks in London that resulted in the deaths of 52 innocent people and injury to 700 others. Those terrible events are seared on the memories of us all, I think—a heart-wrenching reminder of just how real the threat we face is.
As the shadow Home Secretary said, it is not only terrorist threats that our intelligence agencies thwart in exemplary fashion. Daily in each of our constituencies lives are touched, and sometimes ruined, by serious crimes such as murder, rape, child sexual exploitation and trafficking. The hon. and learned Member for Holborn and St Pancras (Keir Starmer) made the highly pertinent point that investigations into all those subjects require scrutiny of all sorts of information, including historical information. We know that in some of the recent and most notable cases, that has been vital to bringing people to justice. I thought that was a powerful argument about not just dealing with now or what might be, but dealing with what has been in the terms that he described.
There are certainly no grounds for complacency. As well as dealing with what has been, we have to be aware that the threat we face is highly dynamic. My hon. Friend the Member for Banbury said that the adequacy of our response will be tested by its capacity to deal with that very dynamism. The ability of our enemies, those who want to do us damage, to move quickly must be matched by our ability to respond with just such alacrity. It is true that, as the shadow Home Secretary and others have said, although the internet has undoubtedly served many virtuous purposes, we cannot ignore the fact that it has also created opportunities for criminals and terrorists, which they have been fast and keen to exploit.
My hon. Friend the Member for Halesowen and Rowley Regis (James Morris) drew our attention to the dark web, and some of the things that happen in that place. In a digital age, our laws must be framed to give our law enforcement and intelligence agencies the tools and capabilities they need to perform their essential work, as my right hon. Friend the Member for Cities of London and Westminster (Mark Field) made clear. As he said, those services will look at only a tiny fraction of the multitude of activities that take place in that area. He drew our attention to the report of the Committee on which he so ably serves, which has looked at these matters in considerable detail.
We are clear that there is a need for new legislation on the subject of investigatory powers. We note and take very seriously David Anderson’s remark, repeated in this Chamber, that there is a need for coherence and clarity in all we do. We have heard many hon. Members repeat his claim, including my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, who was very bold in admitting his ignorance. He suggested that that ignorance applied to us all; I am only prepared to admit to bliss. He said that the nature of what we were dealing with was so complex that it was almost incomprehensible, and that that would have an effect on faith, belief and confidence in the system for all involved. He made a powerful contribution to our debate, and I know that he will continue to do so as we consider these matters over the coming weeks and months.
We hear clearly the message that David Anderson broadcast, which has been repeated today: coherence, clarity and, to some degree, simplification have merit of themselves in assuring people about what we do and why. As the House knows, the sunset clause in the Data Retention and Investigatory Powers Act 2014 provides a clear deadline. Legislation is needed, and David Anderson’s report provides a clear starting point for constructing that legislation. His report is complemented by the report on privacy and security that the Intelligence and Security Committee, which I mentioned, published in March. As the shadow Minister said, we also look forward to receiving the Royal United Services Institute report in the coming weeks. Together, those reports will form a firm basis for considering legislation, but I make no apology for repeating the point that this is a consultative process. Not only do we intend to discuss these matters in the House, as we have done today, but we will publish a draft Bill precisely to facilitate pre-legislative scrutiny of the kind that was called for in this discussion. Today’s debate has been held in that spirit.
I have listened carefully to the many and varied speeches made. Some very specific contributions, including that of the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and the shadow Home Secretary, require careful consideration and will no doubt form the basis of further discussions.
We have heard many tributes paid to our security and intelligence agencies; I want to amplify those remarks. The work they do every day to keep us safe—at great personal risk, as the Home Secretary has often said—is by necessity undertaken in secret, and is consequently unknown and often unheralded. Like her, I applaud what they do. As Security Minister, I am now able to see in person just how impressive those charged with protecting us are, and I welcome the opportunity to place on record the House’s appreciation for their determination, dedication and diligence.
There has been considerable discussion, not unanticipated, of who issues warrants. My right hon. and learned Friend the Member for Beaconsfield raised the issue with his usual style, and made some interesting remarks about the impact that changes might have on operational effectiveness. Others argued that the system could be affected detrimentally by what would be a more bureaucratic and possibly less responsive approach. Those are matters to be explored and discussed; I make no definitive remark on either position today, but those are certainly likely to be the sort of things that we will consider in considerable detail over the coming weeks.
What is absolutely clear is that wherever that consideration leads, the system must have two fundamental attributes at its core—first, that it is practical and workable, for as hon. Members have repeatedly argued, the price of failure is almost unimaginably horrible. Secondly, it should reflect where functions should reside in our parliamentary democracy. There has been something of a fashion among politicians in recent years, perhaps because of a certain degree of insecurity—a lack of confidence, which of course I do not share—which has led to the giving of powers to others which might more properly rest in this House. That was the case made by my hon. Friend the Member for South West Wiltshire (Dr Murrison) when he talked about the accountability to the people through the power—“sovereignty” was the word used—of this House. I do not want to exaggerate the case, but it must be taken fully into account.
The Executive, answerable to this House, and through this House answerable to the people, play an important role in safeguarding our democracy. The argument that others should be involved must not be allowed to erode public confidence. There has been some confusion about public confidence. I do not mean to be unkind to the hon. and learned Member for Edinburgh South West (Joanna Cherry)—I will become more unkind to her when she has been here longer because I will feel more right to be so, but at present it would be excessively harsh—but I do not agree with her about public confidence in the system. The facts do not support her argument. She must know that all surveys of public opinion suggest a very high level of confidence in our intelligence and security services. They suggest that the public support the work they do in keeping us safe, and I do not hear a clarion call for change or the radical spirit that she conveyed reflected in the views and sentiment expressed to me, but perhaps we move in different places in different circles at different times.
We have heard a lot said today about bulk collection of data. Let us be clear. Both the ISC and David Anderson have examined what happens at present and suggested that those capabilities are required, are properly used and are not subject to abuse. Just as clear is the need to address the so-called snoopers charter. I am sorry that it was raised in those terms. There was never a snoopers charter. David Anderson’s report puts that canard back in its nest once and for all.
Despite what some have suggested, David Anderson does not say there is no case for the capabilities that were to have been included in the former Communications Data Bill, though I accept, and the Home Secretary made it clear, that we are taking a step back, thinking afresh and taking into account all that has been said and done. Clarity and coherence are frequently the hallmarks of understanding and almost always the prerequisites of confidence. I acknowledge and accept that and will look at legislation very much in that spirit.
What a valuable debate we have had today. As I thought about our intelligence services, the guardians of our freedom, I thought of C. S. Lewis, who I knew you would want me to say a word about, Madam Deputy Speaker. He said:
“Courage is not simply one of the virtues, but the form of every virtue at the testing point.”
Our intelligence services are tested regularly. This is vital legislation because it affects the safety of the British people. It must be right and fit for purpose for many years to come—no small challenge, given that we are dealing with fast-moving and ever-changing technology, as many hon. Members said. Parliament will, of course, be fundamental to that process, both in the pre-legislative scrutiny to which the draft Bill will be subjected, and in the rigorous scrutiny which I fully expect will be applied to the Bill. That is how it should be.
We must act with the certainty epitomised by my hon. Friend the Member for Rochester and Strood, tempered by the care recommended by my right hon. and learned Friend the Member for Beaconsfield. We must proceed with the confidence illustrated by my hon. Friend the Member for Banbury, coloured by the honest assessment of the scale of the challenge we face, made clear by my right hon. Friend the Member for Cities of London and Westminster, but most of all we must act with the determination personified by my right hon. Friend the Home Secretary, who knows that we must do what is necessary, but fundamentally we must do what is right.
Question put and agreed to.
That this House has considered reports into investigatory powers.