[Relevant documents: Report of the Joint Committee on the Draft Investigatory Powers Bill (HC 651); Intelligence and Security Committee of Parliament Report on the draft Investigatory Powers Bill (HC 795); Third Report from the Science and Technology Committee, Investigatory Powers Bill: technology issues (HC 573); and Investigatory Powers Bill: Government Response to Pre-Legislative Scrutiny (Cm 9219).]
I beg to move, That the Bill be now read a Second time.
Before I begin, I am sure that right hon. and hon. Members will be aware of the death of a prison officer who was attacked 10 days ago in east Belfast. I am sure that the whole House will wish to send its deepest sympathies to his family, friends and colleagues at this time.
The Government are committed to updating and consolidating our country’s investigatory powers in a clear and comprehensive new law that will stand the test of time. Over the past two years, there has been detailed analysis of those investigatory powers through three independent reviews; consultation with law enforcement, the security and intelligence agencies, civil liberties groups, and industry; and now, following the publication of the draft Bill last autumn, scrutiny by a Joint Committee of both Houses of Parliament, the Intelligence and Security Committee, and by the Science and Technology Committee. I would like to place on record my gratitude to the Chairs of those Committees—Lord Murphy of Torfaen, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), and my hon. Friend the Member for Oxford West and Abingdon (Nicola Blackwood)—for the invaluable work that they, and their members, have undertaken over recent months. Their thorough scrutiny has helped to shape and improve the Bill, which today reflects the majority of their recommendations.
The revised Bill is clearer, with tighter technical definitions and strict codes of practice. It includes stronger privacy safeguards, bolstering protections for lawyers and journalists’ sources; it explicitly prevents our agencies from asking foreign intelligence agencies to intercept the communications of a person in the UK on their behalf unless they have a warrant approved by a Secretary of State and a judicial commissioner; it reduces the amount of time within which urgent warrants must be reviewed by a judicial commissioner, cutting it from five days to three; and it strengthens the powers of the new Investigatory Powers Commissioner. Alongside the introduction of the Bill, we published six draft codes of practice in order that they could be reviewed by the House.
Under this Bill, the current system of three oversight commissioners is to be reduced to one commissioner. Given that there have been miscarriages of justice in the past, not least with the Maguire seven and the Guildford four, can the Secretary of State convince the House that it is in the interests of freedom and democracy that we reduce the number of commissioners from three to one?
Although one person will oversee the Investigatory Powers Commission as the Investigatory Powers Commissioner, they will have under them a number of judicial commissioners who will have extensive experience and will undertake certain tasks—first, on the new process of the double-lock authorisation for warrantry that we are introducing. They will also undertake the inspection and review of the operation of the agencies in the same way that the three commissioners have done so far. Far from reducing oversight, this Bill will enhance the oversight that is available.
The pre-legislative scrutiny that the Bill has undergone builds on the previous work of the Intelligence and Security Committee in its “Privacy and Security” report; the independent inquiry into surveillance practices by a panel convened by the Royal United Services Institute; and the review of investigatory powers carried out by David Anderson QC, the independent reviewer of terrorism legislation. All three reviews made it clear that legislation relating to interception and communications data needed to be consolidated and made subject to clear and robust privacy safeguards. Taken together, the scrutiny that this Bill has received may well be without precedent. Three authoritative reports informed the Bill’s drafting, three influential Committees of Parliament then scrutinised that draft, and now the Bill proceeds to full and proper consideration by both Houses of Parliament.
The Bill will provide world-leading legislation setting out in detail the powers available to the police and the security and intelligence services to gather and access communications and communications data. It will provide unparalleled openness and transparency about our investigatory powers, create the strongest safeguards, and establish a rigorous oversight regime.
As the House is aware, the Data Retention and Investigatory Powers Act 2014, which the Bill is intended to replace, contains a sunset clause requiring us to pass legislation by the end of 2016. That is the timetable set by Parliament, and the grave threats we face make it imperative that we do so. Today terrorists and criminals are operating online with a reach and scale that never existed before. They are exploiting the technological benefits of the modern age for their own twisted ends, and they will continue to do so for as long as it gives them a perceived advantage. We must ensure that those charged with keeping us safe are able to keep pace. The Bill will provide the police and the security intelligence agencies with the powers they need, set against important new privacy protections and safeguards. It will ensure that they can continue in their tremendous work, which so often goes unreported and unrecognised, to protect the people of this country from those who mean us harm.
I turn now to the contents of the Bill. In its scrutiny of the draft Bill, the Intelligence and Security Committee quite rightly concluded that
“privacy protections should form the backbone”
of legislation in this most sensitive area. That is indeed the case, and privacy is hardwired into the Bill. It strictly limits the public authorities that can use investigatory powers, imposes high thresholds for the use of the most intrusive powers, and sets out in more detail than ever before the safeguards that apply to material obtained under these powers. The Bill starts with a presumption of privacy, and it asserts the privacy of a communication. Part 1 provides for an offence of unlawful interception, so that phone tapping without a warrant will be punishable by a custodial sentence, a fine, or both. It creates a new offence of knowingly or recklessly obtaining communications data without lawful authorisation, so misuse of those powers by the police or other public authorities will lead to severe penalties. It abolishes other powers to obtain communications data. Subject to limited exceptions, such as court orders, public authorities will in future be able to obtain communications data only through the powers in the Bill, with all the accompanying safeguards.
We know that internet service providers and telecoms companies are vulnerable to hacking, and that some newspapers are not averse to passing brown envelopes to their sources in order to obtain information. Is the Home Secretary satisfied that the provisions in the legislation will prevent such hacking and such unauthorised, and perhaps salacious, access to individuals’ personal information?
As I have just said, the Bill sets out new, enhanced safeguards and oversight arrangements for the investigatory powers that are available to the authorities. As the hon. Gentleman will be aware, inappropriate access to information that is held has been the subject of court cases recently. It is entirely right that if information is being accessed in a criminal fashion, that should be dealt with in the appropriate way. I have just set out that there are new offences in the Bill to deal with the question of people obtaining, knowingly or recklessly, communications data without lawful authorisation.
The Home Secretary knows that I am a supporter of the Bill, but does she share some of my concerns about international human rights law, emerging European privacy law and the collaboration with partners such as the United States on its domestic data and privacy laws vis-à-vis Apple and the FBI? If the Bill becomes an Act of Parliament, does she foresee any problems internationally or with collaborators?
My hon. Friend raises an important point. Many internet service providers, for example, offer services here but they are predominantly based in other countries. That is why the Government have been progressing, and continue to progress, discussions with the United States’ authorities about the whole question of the circumstances under which warrants issued lawfully in the United Kingdom can be exercised in the United States. We have always asserted territorial jurisdiction of those warrants under the Regulation of Investigatory Powers Act 2000. In fact, the previous Labour Government, who introduced RIPA, also established that territorial jurisdiction. It has never been tested, but we are putting that discussion with the United States into place.
The Home Secretary recently met my constituent Barry Bednar, whose 14-year-old son Breck was groomed online and, tragically, murdered. Could she explain to the House how the provisions in the Bill will help to prevent a repetition of Breck’s tragic murder?
My hon. Friend has represented his constituents very well in that matter, and it was an absolutely tragic case. I know the enormous distress that has been caused to Breck’s parents, not just by the initial grooming of their son and its sad consequences, but by other actions that have taken place since in relation to the case. What we are doing in this legislation is important, because it will ensure that the authorities, the agencies, law enforcement and the police will have the powers to enable them better to investigate incidents such as that which led to Breck’s sad death.
Part 1 of the Bill responds to recommendations by David Anderson and others by restricting the use of powers outside the legislation to undertake equipment interference. Where the police or the security and intelligence agencies wish to interfere with a computer or a smartphone to obtain vital evidence and intelligence, a warrant under the Bill will be required. As I have indicated, the Bill also responds to the recommendations of the Intelligence and Security Committee and places a statutory bar on the making of requests, in the absence of a warrant, to other countries to intercept the communications of a person in the UK. There can be no suggestion that the security and intelligence agencies could use their international relationships to avoid the safeguards in the Bill. In answer to a couple of questions earlier I referred to the territorial jurisdiction of the Bill. For the avoidance of doubt, I clarify that I meant, of course, the extraterritorial jurisdiction of the Bill.
The House will know that interception—the obtaining of the contents of a communication, by, for example, listening to a telephone call or reading the contents of an email—is one of the most sensitive and intrusive capabilities available to law enforcement and to the security and intelligence agencies. It is also one of the most valuable, and over the past decade, interception in some form has played a part in every top-priority MI5 investigation. The Bill restricts that power to only a handful of agencies and allows for warrants to be issued only where they are necessary and proportionate for the prevention or detection of serious crime, in the interests of national security or in the interests of the economic wellbeing of the United Kingdom, where that is linked to national security.
Authorising warrants is one of the most important means by which I, the Foreign Secretary and the Northern Ireland Secretary hold law enforcement and the security and intelligence agencies to account for their actions. In turn, we are accountable to the House and, through its elected representatives, to the public.
Part 2 of the Bill will introduce an important new safeguard. As now, a Secretary of State will need to be satisfied that activity is necessary and proportionate before a warrant can be issued, but, in future, it will not be possible to issue a warrant until the decision to issue it has been formally approved by a judicial commissioner. That will place a double lock on the authorisation of warrants. It will preserve that vital element of democratic accountability, but it will, for the first time, introduce independent judicial authorisation.
The Home Secretary may have seen the letter in The Guardian today from a large number of lawyers who suggested that the legislation was intended to give
“generalised access to electronic communications contents”.
Does she agree that that is the very thing that the Bill does not do, and that the double-lock mechanism is there as an assurance that that will not happen?
My right hon. and learned Friend is absolutely right. The point about the Bill is that it makes it possible to intercept communications only under that dual authority—the double-lock that has been put into place—and it is not the case that the authorities are looking for generalised access to the contents of communications. I thank him for bringing that to the attention of the House.
As the Home Secretary says, this is an extremely important power but also a very sensitive one. As I understand it, she exercises it about 2,500 times a year, or about 10 times in each working day. Given that they are so sensitive, how long does she take, typically, over one of those decisions?
It is impossible to put a time on it, because each decision differs. The amount of information that is available, the type of case that one is looking at and the extent to which it refers to a matter that is already being considered vary. The amount of time I give to each case is the amount of time necessary to make the right judgment.
I am grateful to the Secretary of State, and I recognise the sensitivity of these matters. She will know that there have been cases in which police misconduct is alleged and intercept has been used, and subsequently it has been very hard to use that evidence in front of a jury, particularly in a coroner’s court. Does she envisage any change in that? Is she minded to put that in the legislation?
The right hon. Gentleman has raised a very important point. He will be aware of one particular case in recent years in which the admissibility of evidence at inquest has been an issue. That is not a matter that we are putting in the Bill. It was explored when the closed material proceedings were brought into legislation through certain cases. We are looking actively at whether there are other means by which we can ensure that the appropriate information is available when such cases are being considered.
As someone who has also signed thousands of those warrants, with the benefit of hindsight I welcome the judicial commissioner having a look as well. I congratulate my right hon. Friend on making that significant change. Does she recall that the Bill will give the judicial commissioner the power to act only in the same way as a judge might act in a case of judicial review, which means overruling her only if she is behaving in a completely unreasonable way? Does she think that that is necessary, and does she not accept that if a judicial commissioner disagrees with her, there might be some value in at least having a discussion that covers broader principles of judgment and is not simply based on the fact that she is behaving in a way in which no reasonable man or woman would?
With a degree of prescience, my right hon. and learned Friend refers to the very next issue that I will address in my speech. I was going to point out that I know some right hon. and hon. Members have scrutinised the language in the Bill and have raised exactly that issue. I want to be absolutely clear: under the Bill, it will be for the judicial commissioner to decide the nature and extent of the scrutiny that he or she wishes to apply. Crucially, I can reassure right hon. and hon. Members that commissioners will have access to all the material put to the Secretary of State. The judicial commissioner will look not just at the process, but at the necessity and proportionality of the proposed warrant.
Times have no doubt changed, but the information in individual cases is sometimes very simple and limited, because the case is thought to be so obvious. Will the judicial commissioner have the ability to ask for more information that has not gone before the Home Secretary if he or she wishes to know a bit more about the case and check what has been put before the Home Secretary?
I have to say to my right hon. and learned Friend that that will not be the case. The point is that it is important that the Secretary of State and the judicial commissioner make decisions on the basis of the same information being available to both of them. If the judicial commissioner decides that there is not enough information available, he or she would presumably refuse the warrant. It would be open to the Secretary of State to appeal to the Investigatory Powers Commissioner to look at the warrant again, or if the warrant is refused in such a circumstance, the Secretary of State might themselves say, “Take the warrant back, put in more information and resubmit it.”
On a point of clarification relating to the intervention by the right hon. and learned Member for Beaconsfield (Mr Grieve) about the letter to The Guardian signed by over 200 senior lawyers, is the right hon. Lady aware that the letter takes issue with bulk interception warrants and bulk equipment interference warrants, which even the Intelligence and Security Committee says should be removed from the Bill?
I will come on to talk about the bulk warrants, but it was clear from the Committee reports that the powers in the Bill are necessary. The ISC raised a question about the bulk equipment interception warrants, but, following that, the Government have produced further information on all bulk cases. We published some case studies and examples of how the powers would be used alongside the redrafted Bill.
May I take the Home Secretary to the other end of the telescope, as it were, on this matter? One of the concerns people have about a general access point is not about the warrants, but about the notion that, especially online, we can separate contact and content data. The idea is to allow access to contact data, but that will inevitably be blurred with content data online. Does she accept that there is a challenge in separating contact and content data, which could give rise to some people’s concerns about general access to information? Looking at somebody’s internet correspondence is not the same as looking at a record of their phone calls.
I know that that issue was raised when the draft Data Communications Bill was considered and has been raised in relation to the internet connection records power in this Bill, but such a separation is absolutely possible. We have talked at length with companies about being able to separate, for internet connection records, the websites that a particular device has accessed from the content of whatever has been looked at. It is very important for me to make it clear that when we talk about ICRs, we are talking not about looking at people’s web-browsing history, but about looking simply at the initial point of contact.
In relation to the authorisation process, which we have discussed in relation to the questions asked by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), I welcome the Joint Committee’s clear endorsement of the double lock regime and, specifically, the language of the Bill on that point. Right hon. and hon. Members who think that the senior judiciary will simply rubber-stamp Government decisions have clearly never dealt with British judges.
In the case of urgent warrants, the provisions have been tightened in response to the pre-legislative scrutiny.
I will make a little more progress, but my hon. Friend may be able to catch my eye later.
In truly urgent circumstances, such as a fast- moving kidnap investigation, a warrant can still come into force as soon as the Secretary of State has authorised it, but that decision will need to be approved by a judicial commissioner within three working days. If the commissioner disagrees with the Secretary of State’s decision, the commissioner can order that all material gathered under the urgent warrant must be destroyed.
Furthermore, the Bill provides considerable additional safeguards for the communications of parliamentarians and lawyers. In any case, where it is proposed to intercept a parliamentarian’s communications, the Prime Minister would also be consulted, in line with the Wilson doctrine. Equally, the deliberate interception of legally privileged communications can be authorised only in exceptional and compelling circumstances, such as where it is necessary to prevent the loss of life.
Of course Members of Parliament should not be above the law, and the Procedure Committee has ensured that a Member of Parliament who is arrested is treated exactly like a member of the public. We all recognise that, but in some of the most dodgy regimes—ours is not, of course, one of them—Governments do intercept the communications of Members of Parliament. Surely, just so that we can be absolutely reassured, we need the extra safeguard of having you, Mr Speaker, look at such an interception as well. Why not?
I heard my hon. Friend’s earlier exchange with you, Mr Speaker. Two important extra safeguards have been put in this legislation: the first, which is stated in the Bill, is that the Prime Minister will be consulted, but there is also the double lock authorisation. In future, a warrant to intercept anybody—including Members of Parliament, should that be the case—will be subject not just to the determination of a democratically elected individual, but to the independent decision of the judiciary, through the judicial commissioners. That important safeguard has been put into the Bill.
The Home Secretary is right to point to the patchy relationship between the judiciary and Governments of all colours. I think the Bill strikes absolutely the right balance. It is absolutely imperative that somebody who is democratically accountable both to this House and to the country has almost the first say on whether such things are done. It is perfectly right for a properly trained judge to have an overview of the process, but it would have been a retrograde step to lose the democratic accountability and the link to decision making in this place.
I thank my hon. Friend for his comments. It is important that we have the balance right. Many people have said, “Just have judicial authorisation”, and some people still believe that the authorisation should be made by the Secretary of State. By having both, we do not lose democratic accountability, but we add the independent judicial authorisation.
I will make some progress, if I may, but my hon. Friend may very well try again.
I want to turn to communications data—the who, when, where and how of a communication that provide the communication’s context, but not its content. Such communications data are vital to investigations carried out by the police and the security and intelligence agencies. They have been used in 95% of organised crime prosecutions by the Crown Prosecution Service. They are used to investigate, understand and disrupt terrorist plots. They have played a part in the investigation of some of the most serious crime cases in recent times. They can tie suspects and victims to a crime scene, prove or disprove alibis, and help to locate a missing child or adult.
Parts 3 and 4 of the Bill will preserve that power for the police and the security and intelligence agencies, but also provide strong privacy safeguards. Requests for communications data will require the approval of an independent designated senior officer and will be subject to consultation with communications data experts. In addition, requests for communications data by local authorities will also require authorisation by a magistrate, and requests by any public authority, including the security and intelligence agencies, to identify a journalist’s source will require the authorisation of a judicial commissioner.
I have outlined how communications data are vital in providing investigative leads and for pursuing suspects, but where communications take place using social media or communications apps, it does not make sense that those communications are currently out of reach. For example, in respect of online child sexual exploitation, the absence of such records often makes it impossible to identify abusers. As I have said, such an approach defies logic and ignores the realities of today’s digital age. The only new power in the Bill is the ability to require communications service providers to retain internet connection records, when served with a notice issued by the Secretary of State, and after consultation with the provider in question.
To reiterate, internet connection records do not provide access to a person’s full web browsing history. An internet connection record is a record of what internet services a device or person has connected to, not every web page they have visited. I am pleased that the Joint Committee agreed with the Government on the necessity of that power, and concluded that
“on balance, there is a case for Internet Connection Records as an important tool for law enforcement.”
Indeed, the Committee went further and said that law enforcement should be able to access those records for a wider range of investigative purposes, and the Bill reflects the Committee’s recommendations.
The Home Secretary is right to say that about the Joint Committee, but it also wanted greater clarity about those internet connection records. It also wanted to ensure—I would welcome her assurance on this—that the capability existed for the retention of those records, and it asked whose cost that would be.
We have clarified definitions in the Bill, and that point was made not only by the Joint Scrutiny Committee but by the Science and Technology Committee. In considering this issue we have spent—and continue to spend—a long time discussing the technicalities of this issue with companies that could be subject to such notices, because companies operate in different ways. I reiterate that the Government will reimburse in full the reasonable operational costs that companies will be subject to in relation to this matter.
That is important, and I support the Home Secretary’s objective in this case. She will know that the Bill contains a figure of around £180 million for that cost. Is she satisfied—the providers were not—that that figure will cover the costs of the implementation of such a scheme?
The right hon. Gentleman raised that issue with me when I gave evidence to the Joint Scrutiny Committee, and was concerned about the cost. We have discussed in detail with companies the technical arrangements for access to internet connection records, and we have assured ourselves of the feasibility of that. As is currently the case for such matters, the Government will be prepared to reimburse those costs.
The Home Secretary is generous in giving way. We welcome the improvements to the Bill, but I hope she received my letter today detailing the outstanding concerns of the Science and Technology Committee. In particular, we feel that technology capability notices remain a key area of uncertainty regarding encryption, and despite the commitments made at the Dispatch Box, we must have long-term certainty for the tech sector on reimbursement of costs. Those questions will be central to delivering a coherent piece of technical legislation that is fit for a fast-moving area of our economy, and it must be dealt with as quickly as possible as the Bill proceeds through the House.
I reiterate the point that I made previously and again just now: 100% of the compliance costs will be met by the Government. My hon. Friend asks me to provide a long-term commitment for that, and we are clear about that in the Bill. As she will be aware, it is not possible for one Government to bind the hands of any future Government in such areas, but we have been clear about that issue in the Bill and I have been clear in my remarks today.
Alongside the draft code of practice, I have published—at the Joint Committee’s request—a comparison of the differences between the proposals in the Bill and those set out by Denmark in recent years. I have also held further discussions with UK and US communications service providers on the proposals in the Bill, and we will continue to work closely with them as we implement this new power. As a guarantee of that, we have included a commitment that the Home Secretary will report to Parliament on how the Bill is operating within six years of Royal Assent. If Parliament agrees, it is our intention that a Joint Committee of both Houses will be formed five years after the Bill receives Royal Assent, specifically to undertake a review of the new legislation and to inform the Home Secretary’s report.
Part 5 of the Bill deals with equipment interference—for example, the acquisition of communications or information directly from devices such as computers or smartphones. By bringing existing powers into the Bill, we have responded to recommendations made by David Anderson, QC, and by the Intelligence and Security Committee. The Bill places those powers on a clear statutory footing, and makes their use subject to the issue of warrants that must be approved by a judicial commissioner.
Hon. Members will be aware that not only are those powers already available to law enforcement bodies, but they are vital to so much of their work to prosecute serious criminals. In exceptional circumstances, that capability is also used to deal with threat-to-life situations that fall short of serious crime, most typically to identify missing persons. For example, we would all expect that when a child goes missing and the parents know the password to their social media account, that the police should be able to use that password to search for vital clues. The Bill preserves capabilities that are already available to law enforcement, and makes it clear that they can be used to save lives. Nevertheless, these are intrusive powers and their use must be strictly limited. In future, all equipment interference warrants will require the approval of a judicial commissioner.
The draft code of practice, which I published alongside the Bill, constrains the use by law enforcement of more novel or advanced techniques that hon. Members might reasonably expect to be the preserve of the National Crime Agency and similar bodies. Equipment interference warrants may only be served on communications service providers with the personal agreement of the Secretary of State.
Alongside the draft codes of practice, and in response to recommendations of the Intelligence and Security Committee, we published a comprehensive public case setting out how bulk powers—for interception, communications data and equipment interference—are used, and why they are more necessary than ever before. There are, of course, limits to how much can be said about those most sensitive bulk capabilities without handing an advantage to criminals and those who mean us harm. For that reason, the security and intelligence agencies have provided further, classified detail about the use of those powers to the Intelligence and Security Committee.
As the publicly published case for bulk powers makes clear, such powers are vital to the effective working of the agencies. They have played a significant part in every major counter-terrorism investigation over the past decade, including in each of the seven terrorist plots disrupted since November 2014. They have been essential to detecting more than 95% of cyber-attacks against people and businesses in the UK identified by GCHQ over the past six months, and they enabled more than 90% of the UK’s targeted military operations during the campaign in the south of Afghanistan.
Part 6 of the Bill places these powers on a clearer statutory footing and makes them subject to robust and consistent safeguards. In future, bulk warrants will need to be authorised under the double lock regime that I have described. Furthermore, the examination of any data obtained under a bulk warrant will need to be for an operational purpose that has been approved by a Secretary of State and an independent judge.
Other hon. Members have mentioned protection for the communications of parliamentarians. Does the Home Secretary agree that the provision in the Bill does not protect parliamentarians from having their communications to and from constituents scooped up by bulk collection provisions, or with communications data or internet connection records, which could lead to whistleblowers being identified?
I could give a variety of responses to those points. The hon. and learned Lady must be aware that certain bulk powers are predominantly those for foreign usage, rather than in relation to the United Kingdom. With bulk powers, where there is any interaction with individuals in the UK, the double lock authorisation is still necessary to ensure that the examination of the information is subject to the same sort of tests regarding necessity and proportionality.
Part 7 applies those safeguards to the retention and use of bulk personal datasets. Such information is already used by the security and intelligence agencies to keep us safe, and may be acquired under existing powers. However, the Bill introduces powerful new privacy protections so that the personal data of innocent people are always subject to strong robust safeguards, irrespective of how they were acquired.
I said that privacy safeguards are at the heart of this Bill, and the guarantor that those safeguards will be effective and adhered to—both in substance and in spirit—will be the new Investigatory Powers Commissioner, or IPC. Created under part 8 of the Bill, the commissioner, who will hold or have held high judicial office, will oversee a world-leading new oversight body, bringing together the existing responsibilities of the Interception of Communications Commissioner, the Intelligence Services Commissioner and the Chief Surveillance Commissioner. The new Investigatory Powers Commissioner will be provided with an enhanced budget and a dedicated staff of commissioners and inspectors, as well as technical experts and independent legal advisers. They will have access to the staff and systems of the agencies, and will have a remit to provide Parliament and the public with meaningful assurance about how the powers in the Bill are being used. When a person has suffered as a result of a serious error in how the powers in the Bill are used, the IPC will have a new power to inform the victim without the need to consult the Investigatory Powers Tribunal, which will itself stand ready to hear any claim and will have the power to quash warrants, award compensation or take any other remedial action it feels appropriate.
I turn now to part 9 of the Bill and clause 217, which provides for requests to be made to communications service providers to maintain permanent technical capabilities to give effect to warrants, and, in connection with that, to maintain the ability to provide copies of communications in an intelligible form. Let me be clear: this provision only maintains the status quo. It allows law enforcement and the security and intelligence agencies to ask companies to remove encryption that they have applied or that has been applied on their behalf. It would not—and under the Bill could not—be used to ask companies to do anything it is not reasonably practicable for them to do.
Finally, alongside the Bill, we have taken forward the recommendation made by Sir Nigel Sheinwald to develop an international framework to ensure that companies can disclose data, a point I made in response to my hon. Friend the Member for The Wrekin (Mark Pritchard). We are in formal negotiations with the United States Government and are making good progress. The provisions in the Bill are drafted to accommodate any such agreement. Any company co-operating with its obligations through an international agreement will not be subject to enforcement action through the courts.
The Bill provides unparalleled transparency on our most intrusive investigatory powers, robust safeguards and an unprecedented oversight regime, but it will also provide our law enforcement and intelligence agencies with the powers they need to keep us safe. Because of its importance, our proposals have been subject to unprecedented levels of scrutiny, which has resulted in a Bill that really does protect both privacy and security—it is truly world-leading. I look forward to the revised Bill now receiving full and careful consideration by both Houses. I commend it to the House.
I echo the condolences the Home Secretary rightly paid to the family of the police officer in Northern Ireland who lost his life in the course of his duties. They are in our thoughts today.
Let me start with the principle on which I think there is broad agreement. From the Government Benches to the Opposition Benches, from Liberty to the security services, there is a consensus that the country needs to update its laws in this crucial area, and that, if the police and security services are to be given new powers, there must be broad agreement that those powers be balanced with much stronger safeguards for the public than have previously existed. That, it seems to me, is a good platform from which to start.
The Bill is commonly seen through the prism of terrorism, but, as the Home Secretary said, it is about much more. The parents of a young child who had gone missing would want the police to have full and urgent access to all the information they need to bring them to safety. The Bill is about the ability to locate missing children or vulnerable adults. It is about reducing risks to children from predatory activities online. It is about preventing extremists of any kind creating fear and hatred in our communities, and it is about defending the liberties we all enjoy each and every day. Despite that, the truth is that we are some way from finding a consensus on the form the proposed legislation should take.
Three months after I was elected to this House, two planes flew into the World Trade Centre in New York, with highly traumatic consequences. In the 15 years since, we have all been engaged on a frantic search. What is the right balance between individual privacy and collective security in the digital age? As of yet, we have not managed to find it. The arguments in the previous Parliament over the forerunner to this Bill loom over our debate today, as does the current stand-off in the United States between Apple and the FBI. I would say that that is an unhelpful backdrop to this debate. It suggests that privacy and security concerns are irreconcilable: a question of either/or, choosing one over the other. I do not believe that is the case. We all share an interest in maximising both our individual privacy on the one hand and our collective security on the other. As a House of Commons, our goal should be to give our constituents both.
Finding that point of balance between the two should be our task over the next nine months. As the Home Secretary knows, I have offered to play a constructive part in achieving that. The simple fact is that Britain needs a new law in this area. Outright opposition, which some are proposing tonight, risks sinking the Bill and leaving the interim laws in place. To go along with that would be to abdicate our responsibility to the police, security services and, most importantly, the public. I am not prepared to do that. Just as importantly, it would leave the public with much weaker safeguards in place and I am not prepared to do that either.
I will not be joining the hon. Gentleman in the Lobby tonight, because I do not believe, as I will come on to explain, that the Bill is acceptable in its current form. As he will have heard me say in my opening remarks, I am in broad agreement with the Government’s objectives. I am not seeking to play politics with the Bill or to drag it down. I hope he will find some assurance in those words.
The right hon. Gentleman’s position, I am afraid, does not sound particularly persuasive or tenable, certainly to those outside this place. I just wonder what message it sends from his party, supposedly a Government in waiting. Instead of trying to thrash out the detail in Committee and on Report, by abstaining this evening the message will be very clear about what the Labour party actually thinks on this important issue.
I disagree entirely. As I said, we will not oppose the Bill because we will be responsible. I have recognised that the country needs a new law. I have also said, as I will come on to explain, that the Bill is not yet worthy of support. There are significant weaknesses in the Bill. I am sorry, but I am not prepared to go through the Lobby tonight and give the hon. Gentleman and his Government a blank cheque. I want to hold the Government to account. I want to see changes in the Bill to strengthen the Bill. When they listen, they will earn our support. That is entirely appropriate and responsible for an Opposition party to do.
The higher the consensus we can establish behind the Bill, the more we will create the right climate in the country for its introduction. As the Home Secretary said, it could create a template to be copied around the world, advancing the cause of human rights in the 21st century. The prize is great and that is why I am asking those on the Opposition Benches to work constructively towards it.
I repeat today that I do not think our mission is helped by misrepresentation. In my view, it is lazy to label the Bill as a snoopers charter or a plan for mass surveillance. In fact, it is worse than lazy: it is insulting to people who work in the police and in the security services. It implies that they choose to do the jobs they do because they are busybodies who like to spy on the public, rather than serve the public. I do not accept that characterisation of those people. It is unfair and it diminishes the difficult work they do to keep us safe.
I agree with the hon. Lady. The idea that they have the time to do that is fanciful. They are going straight to the people they need to be concerned about on our behalf, and that is why I reject the characterisation that is often placed on this proposed legislation.
What does my right hon. Friend make of the comments from the UN’s special rapporteur on privacy, Joseph Cannataci, who last week criticised the Bill, saying that authorising bulk interception would legitimise mass surveillance?
We need to explore the plans in detail. As I said, I do not accept that the Bill is a plan for mass surveillance, but we need to work hard over the next nine months to take those concerns away.
That said, there are well-founded concerns about the Bill. As we just heard, there is a genuine worry that providing for the accumulation of large amounts of personal data presents risks to people’s privacy and online security. More specifically, there is a worry that investigatory powers can be abused and have been abused in the past. In recent years, there have been revelations about how bereaved families, justice campaigners, environmental campaigners, journalists and trade unionists have been subject to inappropriate police investigation. What justification could there ever have been for the Metropolitan police to put the noble Baroness Lawrence and her family under surveillance? It has not been proven but I know that the Hillsborough families strongly suspect that the same was done to them.
A lot of this debate has been about looking at people’s files, but does the right hon. Gentleman recognise that this should be about victims, including child victims, of crime? Has he had any representations from charities representing victims of crime and children’s charities?
I have had such representations, as the Government have, which is why I said the Bill was about much more than terrorism; it is about giving the police and the security services the tools they need to keep us safe in the 21st century. That is why I am not playing politics with the Bill or adopting a knee-jerk oppositionist approach; I am taking quite a careful and considered approach. That said, the Government have not yet done enough to earn my support.
I have a lot of respect for the right hon. Gentleman, as he knows, and I would like to congratulate him on what he said about rejecting the conspiracy theories about this being a snoopers charter—it was deeply responsible of him to say that—but surely the Second Reading of a Bill is when we agree or disagree with the principle of a Bill. He has said he agrees with the principle of the Bill, and there are many behind him—perhaps not behind him in the Chamber right now, but they are in the Labour party—who agree with that. Surely, therefore, the opportunity today is to vote for the principle of the Bill on Second Reading, after which we can scrutinise it upstairs and back on the Floor of the House on Report. The right thing to do, therefore, is to support the Government tonight.
I will let the hon. Gentleman form his own view on the right parliamentary tactics for the Opposition, but I will be deciding that position, and I do not think I would be serving the public simply by giving the Government a blank cheque this evening. It is my job—[Interruption.] Wait a second!—to hold them to account on behalf of the public and to get the most I can to protect the public as best we can through the Bill. I am approaching that job, as part of Her Majesty’s Opposition, with the utmost seriousness.
Alongside bereaved families, there have been cases of journalists claiming that material was inappropriately seized from them, most recently in connection with the “plebgate” affair. Last year, a former senior police officer-turned-whistleblower came to an event in Parliament and said that he and a colleague had been involved in supplying information that led to the blacklisting of construction workers. I would refer those who claim that these fears are exaggerated to the biggest unresolved case of this kind—the 1972 national building workers’ strike and the convictions of 24 pickets, known as the Shrewsbury 24. It is widely believed that their prosecution was politically orchestrated, with the help of the police and security services.
My right hon. Friend mentions the case of the Shrewsbury pickets, which is a stark example of the misuse and abuse of state power. Does he agree, therefore, that it is essential that the Bill contains the strongest possible safeguards specifically to ensure that great, historic injustices, such as the politically motivated incarceration of pickets in 1972, can never happen again?
My hon. Friend puts it very well, which is why fears about such legislation run deep on the Labour Benches. We know the truth about what happened, even though it is not widely known yet by the public, because we have seen the documents. I have here a memo from the security services sent at the time to a senior Foreign Office official—I am glad that the Foreign Secretary is winding up tonight, because this concerns his Department. It is headed “Secret” and talks about the preparation of a television programme that went out and the trial of the Shrewsbury pickets, and it says, at the top:
“We had a discreet but considerable hand in this programme”.
That is from the security services, so why would people on the Labour Benches not fear handing over more power to the police and security services without there being adequate safeguards?
Order. Just before the hon. Member for The Wrekin (Mark Pritchard) intervenes, I advise the House that, although everything is being done perfectly properly, and the Home Secretary and the right hon. Gentleman have been generous in giving way, 48 Back Benchers wish to contribute. Those who have or seek the Floor might wish to take account of that point. I call Mark Pritchard.
I will be brief, Mr Speaker.
The shadow Home Secretary is quite right to point out that abuses, where they have taken place, are absolutely wrong, but does he also recognise that the Bill contains a new offence of misusing communications data, which is something he should welcome?
I will come to that very point, but these are not historical matters, because the convictions I just referred to still stand. I pay tribute to the Government, because they have a good record on this, but we need to go further to give the full truth about some of the darkest chapters in our country’s past, so that we can learn from them and then build the right safeguards into the Bill. The Bill will fail unless it entirely rules out the possibility that abuses of the kind I have mentioned could ever happen again. That is the clear test I am setting for the Bill.
That is also why I welcome the principle of the Bill. It leaves behind us the murky world of policing in the ‘70s, ’80s and ’90s, and holds out the possibility of creating a modern and open framework that makes our services more accountable while containing much improved safeguards for ordinary people. The Bill makes progress towards that goal, but it is far from there yet. It is clear that the Home Secretary has been in listening mode and responded to the reports of the three parliamentary Committees, but of the 122 recommendations in the three reports, the Government have reflected less than half in the revised Bill. She will need to be prepared to listen more and make further significant changes to the Bill if she is to achieve her goal of getting it on to the statute book by December.
I want to take the House through six specific concerns that we have with the Bill. The first is on privacy. As I said, people have a right to maximise their personal privacy, and given people’s worries about the misuse of personal data, the Intelligence and Security Committee was surely right to recommend that privacy considerations be at the heart of the Bill. A presumption of privacy would set the right context and provide the basis from which the exceptional powers are drawn. It would be the right foundation for the whole Bill: respect for privacy and clarity that any intrusions into it require serious justification. The Home Secretary said that privacy protection was hardwired into the Bill. I find it hard to accept that statement. I see the changes on this point as more cosmetic; they have not directly answered the Committee’s concerns. I therefore ask the Government to reflect further on this matter and to include a much stronger overarching privacy requirement, as recommended by the Committee, covering all the separate powers outlined in the Bill.
Also on privacy, we do not yet believe that the Government have gone far enough to protect the role of sensitive professions. The Committee noted that the safeguards for certain professions must be applied consistently across the Bill, no matter which investigatory power is being used to obtain the information, but it is hard to see how that is achieved at the moment. On MPs and other elected representatives, the Bill codifies the Wilson doctrine, but there is a question about why it stops short of requiring the Prime Minister to approve a warrant and requires only that he be consulted. The Bill could be strengthened in that regard. On legal privilege, the Law Society has said that, although it is pleased to see that the Government have acknowledged legal professional privilege, it needs more adequate protection, and it believes that that should be in the Bill, not just the codes that go with it.
On the Wilson doctrine, the wording of the Bill, as I understand it, relates to communications between Members of Parliament and constituents. That does not cover the whole Wilson doctrine, which covers communications between Members of Parliament and whistleblowers, between Members of Parliament and each other, and between Members of Parliament and campaigning organisations. They should all be protected. Does the right hon. Gentleman agree?
I do agree with the right hon. Gentleman. I was making the point that the provisions need to be strengthened in respect of prime ministerial approval, but also in the way that he describes to give our constituents that extra trust, so that if they come to speak to us in our surgeries, they can be sure that they are speaking to us and nobody else.
If there is a matter of acute public concern and a whistleblower is making himself a real nuisance to the Government, and communicates that to his Member of Parliament, should one member of the Government, the Home Secretary, ultimately authorise it, with it then being referred to the Prime Minister, who might also be affected by the decision? He would effectively be judge in his own court and surely it is at least arguable that some other scrutiny should be involved.
I think the Home Secretary has indicated that there would be, because her decision would be subject to the double lock, including judicial approval. My point is, why should the Prime Minister be only consulted by the Home Secretary as part of that process? It seems to me that there is a role for the Prime Minister finally to approve any such warrant, and I believe the Bill could be strengthened in that regard.
There is also the question of journalists. The National Union of Journalists believes that the Bill weakens existing provisions. Clause 68, which makes the only reference to journalists in the entire Bill, sets out a judicial process for the revelation of a source. Its concern is that journalists are wide open to other powers in the Bill. Given the degree of trust people need to raise concerns via the political, legal or media route, and given the importance of that to democracy, I think the Government need to do further work in this area to win the trust and support of those crucial professions.
Our second area of concern relates to the thresholds for use of the powers. The Bill creates a range of powers that vary in intrusiveness, from use of communications data and internet connection records at one end to intercept, equipment interference and bulk powers at the other end. There is a real concern that the thresholds for them are either too low or too vague.
Let us take internet connection records. The Home Secretary has previously described ICRs as “the modern equivalent” of the “itemised phone bill”, and the Government intend them to be made available on the same basis—that is, for the detection or prevention of any crime. The Joint Committee noted, however, that this is not a helpful description or comparison. ICRs will reveal much more about somebody than an itemised phone bill. They are closer to an itinerary, revealing places that people have visited.
The question for the House is this: is it acceptable for this level of personal information to be accessed in connection with any crime—antisocial behaviour or motoring offences, for instance? I do not believe it is, and I think a higher hurdle is needed. This is a critical point that the Government will need to answer if they are to secure wider public support for their Bill. People have legitimate fears that if ICRs become the common currency in law enforcement, much more information will be circulating about them, with the potential for it to be misused.
The Government need to tell us more about why they need this new power and they need to set a stricter test for its use—in connection with the prevention or detection of more serious crime or a serious incident such as a missing person, for instance. That is what I think the hurdle should be: serious crime rather than any crime, and I would welcome hearing the Home Secretary’s response on that point.
At the other end of the scale, the justification for using the most intrusive powers in the Bill is on grounds of “national security” or, as the Home Secretary said, “economic well-being”. While I understand the need for operational flexibility, there is a long-standing concern that those tests are far too broad. There is a feeling that “national security” has been used to cover a multitude of sins in the past. Let us remember that official papers from the domestic building workers’ strike in English market towns in 1972 are still being withheld on grounds of “national security”! How on earth could that possibly be justified?
The right hon. Gentleman is bringing up a point that relates to proportionality, but it strikes me as odd that he has rammed it home so strongly when the Bill itself mentions proportionality and the oversight of the Information Commissioner includes looking at proportionality. The right hon. Gentleman is going on and on about it, but it is actually in the Bill.
I do not believe it is. I put it to the hon. Gentleman that national security is a very broad term that is not defined in the Bill. The Joint Committee encouraged the Government to define it in order to give people greater security. As I have just said, activities have been carried out in the past under the banner of national security that I think he would struggle to justify as such.
The problem with the “economic well-being” test is that it potentially opens up a much wider range of activities to the most intrusive powers. The Bill states that matters of economic well-being must be only “relevant” to national security, not directly connected to it, as the Home Secretary seems to imply. This raises the issue of what extra activities the Government want to cover under this banner that are not covered by national security. A cyber-attack on the City of London has been mentioned, but surely that would already be covered by national security provisions.
Let me put two suggestions to the Home Secretary. First, I suggest that she accept the Joint Committee’s invitation to define “national security” more explicitly. Alongside terrorism and serious crime, it could include attacks on the country’s critical or commercial infrastructure. Secondly, if she were to do that, the economic well-being test could be dropped altogether. That would build reassurance among Opposition Members that there could be no targeting in future of law-abiding trades unionists, as we have seen happening in the past.
The third area of concern is with ICRs themselves—both their content and their use.
I would gladly share with the right hon. and learned Gentleman some of the papers I have about the historic injustices that we have seen in this country—[Interruption.] But it is relevant, because those convictions still stand to this day. I said earlier—I do not know whether he was in his place—that revelations have been made that information supplied to blacklist people in the construction industry came from the police and the security services. I welcome the move to codify all this in law so that those abuses cannot happen again, but I hope that he will understand that Labour Members want to leave nothing to doubt. Why should the most intrusive warrants be used on the test of economic well-being? What does that mean? Are we not entitled to say that national security alone can justify intrusion on people’s privacy in that way?
I have been listening carefully to the response of the right hon. Gentleman to my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier). Let me press him on the point that my right hon. and learned Friend raised, because it is very important. We are inserting the judicial authorisation of warrants. I did not think—I said this in my speech—that any Member should question the independence of the judiciary. It seems, however, that he is doing just that. Will he now confirm that he is not questioning that?
I am not doing that in any way, shape or form. It is wrong for the Home Secretary to stand there and imply that. What I am talking about is the grounds on which her Bill gives the police and the security services the ability to apply for warrants. [Interruption.] Conservative Members should listen: I am saying to the Home Secretary and to them that those grounds should be as tightly defined as possible, and I do not think it helps if she is proposing that they can be brought forward on grounds of “general economic well-being”. In the past, her party has taken a different view from ours, and this opens up a much wider range of potential activities that could be subject to the most intrusive warrants. That point is both fair and, if I may say so, well made.
My question to the right hon. Gentleman is this: why did it not occur to him on 4 November? On that date, he stood there and said:
“Having listened carefully to what the Home Secretary has said today, I believe that she has responded to legitimate concerns and broadly got that…balance right.”—[Official Report, 4 November 2015; Vol. 601, c. 974.]
What has changed in the interim?
Has the hon. Gentleman been listening? I began by saying the very same thing and said that we would work with the Government to get it right, but surely I am entitled, am I not, to raise specific concerns about the wording in the Bill—in this case, wording about “economic well-being”, which I believe opens up a large range of activities that could fit under that banner. I am saying to Government Members that if they want my help, they should help us get that definition right to reassure the public.
Millions of trade unionists, and many of my constituents, are genuinely concerned about the stretch of these powers. The two Front Benchers are being very decent at the moment in trying to introduce safeguards, but it is important for my right hon. Friend to scrutinise the legislation as he is currently doing, so that people can have confidence in it in the long term.
My hon. Friend has put it very well. It is a fact that trade unionists and other campaigners have been subject, over time, to inappropriate use of investigatory powers. If the Conservatives do not understand that, they need to go away and look into the issues. They need to get at the full truth about Orgreave and Shrewsbury, so that they can understand why some people who do not share their political views on life have a different feeling about legislation of this kind. If they did go away and do that, they would probably find that they could reassure people, and that there would be more public support for the Bill.
I am going to make some more progress now.
As I understand it, the intention of the authorities in building internet connection records is to list domains visited, but not uniform resource locators. There would not be a web-browsing history, as the Home Secretary said. The ICRs would show the “front doors” of sites that had been visited online, but not where people went when they were inside. That will give some reassurance to people who fear something more extensive, but the definition of ICRs in clause 54 remains extremely vague and broad. I see nothing that would prevent them from becoming much more detailed and intrusive over time, as technology evolves. The draft code of practice gives an illustration of what would be included, but it does not build confidence, as it acknowledges that information may vary from provider to provider.
It would help everyone if the Government set out a much stricter definition of what can and cannot be included in ICRs, and, in particular, specified that they can include domains but not URLs. The current confusion about ICRs is unhelpful and clouds the debate about the Bill. It needs to be cleared up.
As for the use of ICRs, schedule 4 sets out far too broad a range of public bodies that will be able to access them. It seems to me that the net has been cast much too widely. Is it really necessary for the Food Standards Agency and the Gambling Commission to have powers to access an individual’s internet connection record? I will be testing the Government on that. If there were a suspicion of serious criminality in respect of the food chain or a betting syndicate, surely it would be better to refer it to the police at that point. I must say to the Home Secretary that we shall want to see a much reduced list before this part of the Bill becomes acceptable to us.
Does the right hon. Gentleman agree that not only are ICRs poorly and very broadly defined, but, even in the context of a narrow definition, the Government would still be proposing that every website or domain visited by every citizen in the country, every minute of every day, should be retained and stored for 12 months? Does he agree that that principle, whatever the definition, constitutes a very extensive power for the Government?
I do agree. If such information were published, it would reveal far more about someone than an itemised phone bill. The Home Secretary began this whole process by saying that they were the same, and that this was simply the modern equivalent. It is not. It would reveal a great deal about someone.
The reassurance that I would hope to give is that it is not necessary to limit the information, but it is necessary to raise the threshold allowing the records to be accessed, in order to make this a test of serious crime rather than any crime. At present, the Bill refers to “any crime”, but I do not think it acceptable for the kind of information to which the right hon. Gentleman referred to be available in the context of lower-level offences. I hope that he may be able to support me on that point.
Our fourth area of concern relates to bulk powers. It is a fact that criminals and terrorists, operating both here and overseas, may use a variety of means to conceal their tracks and make it hard for the authorities to penetrate closed or encrypted communications networks. I accept the broad argument advanced by the authorities that power to extract information in bulk form can provide the only way of identifying those who pose a risk to the public, but the greater use of some of those bulk powers takes investigatory work into new territory. The routine gathering of large quantities of information from ordinary people presents significant privacy concerns, and points to a need for the warrants to be as targeted as possible. The operational case for the individual bulk powers was published by the Government alongside the Bill, but it is fair to say that the detail has failed to convince everyone. It is still for the Government to convince people that the powers are needed.
I am sorry to backtrack slightly, but I have just looked up the provision relating to “economic well-being”, which is fairly qualified. Clause 18(2) ties economic well-being to
“the interests of national security”.
However, it also states that a warrant will be necessary
“in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.
That provision is further qualified by subsection (5), which states that a warrant will be issued only
“if it is considered necessary…for the purpose of gathering evidence for use in…legal proceedings.”
Subsection (4) refers to
“information relating to the acts or intentions of persons outside the British Islands.”
It is clear that the position is extremely limited.
Let me add that, as a barrister who has presented a number of cases to judges, I believe that judges who look at legislation every day are perfectly adequate to the task of considering these principles.
I thank the hon. and learned Lady for the law tutorial. Her point may be one for Committee rather than Second Reading. However, I did refer to it earlier. The Bill uses the word “relevant”; it does not use the words “directly linked to national security”. She pulls a face, but I am sure that I speak for every Labour Member when I say that there is no room for ambiguity when it comes to these matters. The Government must be absolutely clear about what they mean. We have seen trade unionists targeted in the past on the basis of similar justifications, and we will not allow it to happen again.
The right hon. Gentleman wants the Home Secretary to draft a law that envisages every new provision, every change in technology, every change in crime and every change in threat over the next 50 or 100 years. The Home Secretary cannot do that and nor can the right hon. Gentleman, which is why the Home Secretary has instead introduced a system of oversight, proportionality and judicial checks and balances, in order to provide the flexibility that is necessary for our nation to have security in a changing world.
I disagree. I am making a legitimate point about which we feel strongly. I am saying that the most intrusive powers in the Bill should be strictly limited to national security. The hon. Gentleman has a different view, but I believe that serious crime and national security should be the strictly limited grounds on which the most intrusive warrants are applied for. I hope that he will approach the issue in a spirit similar to the one in which I have approached it: I hope that he will look into the concern that I have raised in more detail and try to understand why Labour Members feel so strongly about it.
The hon. and learned Member for South East Cambridgeshire (Lucy Frazer) talked about barristers presenting cases to judges. Does the right hon. Gentleman agree that, given the double-lock model in the Bill, there will be no barristers arguing the case before the judicial commissioner? That is exactly the point. There will be no gainsayer and no proposer; there will simply be a judicial review, an exercise carried out by the judicial commissioner on his or her own.
That is an important point, which I shall come to in a moment.
I was talking about bulk powers. Important concerns were raised by the Intelligence and Security Committee about scope, oversight and the more generic class warrants, and I do not believe that they have been adequately answered. One of the Joint Committee’s recommendations was that the Government should establish an independent review of all the bulk powers in the Bill. Given the complexity and sensitivity of the issue, I think that the House would benefit from that, so my specific ask is for the Home Secretary to commission such a review, to be concluded in time for Report and Third Reading.
Our fifth concern is about judicial oversight, and relates to one of our earliest demands in respect of the Bill. The Government have given significant ground in this area, and, as the Home Secretary said, the Bill is stronger as a result. However, we believe that it could be stronger still. It currently says that, when deciding whether to approve a decision to issue a warrant, a judicial commissioner must apply
“the same principles as would be applied by a court on an application for judicial review.”
The point has just been made by the hon. and learned Member for Edinburgh South West (Joanna Cherry).
I have previously shared with the Home Secretary my fear that that could mean a narrower test, taking account of only the process and reasonableness of the Home Secretary’s decision rather than the actual merits and substance of an application. I was listening carefully to what she said at the Dispatch Box earlier, and I thought I heard her provide reassurance that a much broader consideration could be provided by a judicial commissioner. I hope that that is the case, and if it is, why not delete the judicial review clause from the Bill? That would make it absolutely clear this is not just a double lock but an equal lock, in which the judicial commissioner has the same ability look at the entire merits of the case.
Our sixth and final concern relates to the misuse of the powers. I accept the concerns of the Police Federation that there need to be safeguards for the collection of data in a lawful manner, but I also agree with its view that the Bill needs to make it clearer that an overarching criminal offence is created for the deliberate misuse of any of the powers. That should relate to the obtaining of data and to any use to which those data are subsequently put. Both should be a criminal offence. That would provide an extra safeguard for the public.
I have set out six substantive issues that must be addressed. Given the seriousness of these concerns, people have questioned why we are not voting with the Government tonight—[Interruption.] We are voting neither with them nor against them. The simple answer is that we need new legislation but the Bill is not yet good enough. That is why we have set these tests. Simply to block this legislation would in my view be irresponsible. It would leave the police and security services in limbo and, as communications migrate online, that would make their job harder. We must give them the tools they need to do the job. If we did not put new legislation on the statute book, we would leave the public exposed to greater risk because they would not have the safeguards that are in the Bill.
However, let me be clear that there is no blank cheque here for the Government. We will not be voting for the Bill tonight because it is some way from being good enough, and if the Government fail to respond adequately to the concerns I have raised, I give notice to them that we will withdraw our support for the timetabling of the Bill. It is as simple as that. The public interest lies in getting this right and in not sacrificing quality to meet the deadline. The time has come for the House to lay politics aside and to find a point of balance between privacy and security in the digital age that can command broad public support.
We on these Benches have worked hard to uncover the truth about some of the dark chapters in our country’s past precisely so that we can learn from them and make this country fairer for those coming after us. I want a Bill that helps the authorities to do their job but protects ordinary people from intrusion and abuse by those in positions of power. I also want Britain to be a country that gives its people individual privacy and collective security. Our shared goal should be a Bill that enhances our privacy, security and democracy and—with goodwill and give and take on both sides—I believe that that is within our grasp.
Order. In the light of the extensive interest in this debate, we shall need to begin with a limit of eight minutes on Back-Bench speeches, though I give notice to the House that that limit will almost inevitably have to fall. I begin by calling the Chair of the Intelligence and Security Committee of the House, the right hon. and learned Member for Beaconsfield (Mr Grieve).
I am grateful for the opportunity to participate in this debate. I want to summarise the views of the Intelligence and Security Committee on the Bill. The Committee has published two reports on the matter. In addition, the Government and the agencies have provided us with further evidence since we published the second report, and I want to update the House on that.
The present Committee and its predecessor are satisfied that the Government are justified in coming to Parliament to seek in broad terms the powers that the Bill contains. None of the categories of powers in the Bill—including the principle of having powers of bulk collection of data, which has given rise to controversy in recent years—is unnecessary or disproportionate to what we need to protect ourselves. In that context, I go back to what I said in my intervention on the Home Secretary, which was that certain individuals in this debate are labouring under a false understanding of what the legislation is really about. We also welcome the fact that the Government have sought in the Bill to provide much greater transparency than previously existed. It has been frequently said, but it is worth repeating, that the Regulation of Investigatory Powers Act 2000 was often incomprehensible, and that is precisely what we need to get away from.
The basic problem is that, by its very nature, the operational detail of the secret work done by the agencies cannot be revealed without damaging or endangering their capabilities. Assurances are therefore needed that the extensive powers and capabilities that they undoubtedly have are taken on trust in so far as any potential for misuse is concerned. That is why the Intelligence and Security Committee was set up and the various commissioners appointed. It is noteworthy that, apart from a few exceptions based on mistake rather than on malicious intent, all those bodies have consistently given the investigatory powers used by the agencies a clean bill of health. From my own experience not only as Chairman of the ISC but as Attorney General, I believe that the agencies operate to high ethical standards and are scrupulous in confining the use of their powers and capabilities to legitimate purposes. I think that that is in their DNA. A previous head of GCHQ, Sir Iain Lobban, has said that if he had asked his staff to do something unethical, they would simply have refused.
However, such an environment produces its own problem. For those of us within the bubble, our experience of the nature of the agencies’ role risks making us complacent about the legitimate concerns of those outside that bubble. The fact that a particular power might never, to our knowledge, have been misused does not mean that we should disregard the possibility of creating transparent safeguards for its use, if this can be done without interfering with operational capability. We also have to accept the possibility that times might change and standards slip. It is important that we should provide safeguards against such slippage.
It is with that in mind that I turn to our response to the Bill. The recommendations made in our report were intended to improve the legislation by trying to provide greater clarity and transparency and increased safeguards where we thought it would be possible to do so. We are pleased that the Government responded to nine of our 22 recommendations, including three key ones. We particularly welcome the revisions made to increase safeguards relating to legal professional privilege, although I have noted the comments that were made earlier today and I suspect that this matter can be looked at still further in Committee.
A number of our recommendations were not accepted. We were disappointed that the Bill does not include a clear statement on overarching privacy protections. We accept that the Bill has safeguards, but they come across as slightly piecemeal. This seems to be a missed opportunity to provide the necessary level of public reassurance, even if the practical consequence would not make a vast amount of difference. The same point arises in relation to putting all powers relating to investigatory powers operations in one place. The Government have chosen to leave some powers elsewhere, even though we thought it would have been helpful to put them all in the Bill.
I turn now to the three most significant issues. The first was our concern that the authorisation procedures for the examination of communications data were inconsistent in respect of safeguards for those in the United Kingdom. There are different routes for obtaining such material. Generally speaking, law enforcement agencies will access such material via a specific request to a communications service provider, which is subject to senior officer authorisation, but it could also be obtained via GCHQ bulk interception capabilities as a by-product. In those circumstances, although there are many safeguards relating to examining content, the same safeguards do not exist in respect of the data on their own. We thought that that was inconsistent and might be changed. The Government have helpfully responded by pointing out that this could make the burden too onerous for senior officers. We believe, however, that that matter could be addressed and we hope that it will be looked at again during the passage of the Bill.
Does my right hon. and learned Friend think that this matter could be addressed by increasing the independence of judicial oversight, so that judges would be much more able to refuse a warrant? Might that not also increase public acceptance of these measures?
This is an area that does not currently have warrantry. It is an area in which there is specific authorisation, and that is what we have been looking for. However, we will listen carefully to what the Government have to say about the practical problems that that might pose.
The second issue concerns the agencies’ use of equipment interference. Our concerns focused on the way in which the use of this capability is authorised, rather than on the need for it, which is clear to us. In particular, we were not initially provided with evidence that explained the need for a bulk power, as opposed to a targeted thematic one. That is why we reported in the way we did. Following publication of our report, we received additional evidence from the agencies as to why they need bulk equipment interference warrants to remain in the Bill and they actually made a persuasive case. More importantly, the Committee was reassured that information obtained by such means will be treated in exactly the same way, with exactly the same controls, as data acquired under a bulk interception warrant. The Committee is therefore broadly content that there is a valid case for the power to remain in the Bill, but, just as with bulk interception warrants, we want to see the safeguards and controls in detail and hope to do so in the near future.
The third issue is that the Committee expressed concern about the process for authorising the obtaining of bulk personal datasets. It is undoubtedly necessary and proportionate that agencies should have the power to obtain them, because they can be vital to their work in helping to identify subjects of interest, but they largely contain private information on large numbers of people of no relevant or legitimate interest to the agencies at all.
Does the right hon. and learned Gentleman accept that there is a question mark over which agencies can then access such information? I have received many emails with concerns about the net having been cast too wide in respect of agencies such as the Food Standards Agency, the Gambling Commission and others, and that the information could be misused. That is the kind of perception that people care about out there.
I understand the hon. Lady’s concern, which can be looked at. From what the Committee saw, we do not think that that problem should arise with the agencies that do have access, but I am sure the Home Secretary will want to respond in due course.
Intrusiveness needs to be fully considered as part of the authorisation process, which was why the Committee recommended that that could be done far better if class-based authorisations were removed from the Bill and a requirement made that Ministers should authorise the obtaining and periodic retention of each dataset. The Government came back and suggested that that would be too onerous for Ministers, but we suggested that the recommendation could be met through increasing the role of commissioners in renewing orders and amending the duration of authorisations, which could be longer than at present. Our point was that it was right that Ministers were constantly sighted as to what datasets were being obtained and we were anxious that that might not always happen under the current form of authorisation.
The Committee also raised several more minor concerns that are set out in our report and can be returned to on Report if they cannot be resolved in Committee. Given the time available, I apologise that I cannot go through them all here. However, we are pleased that urgent warrants must now be approved within three days rather than the five days originally proposed. The same can be said of the clause 134, which provides for retrospective oversight when UK material has been inadvertently collected through its maker coming into the country.
There were, however, two further matters of concern. We were troubled that we have not yet seen the actual list of operational purposes that must underpin any draft bulk warrant, which goes to the heart of the legislation. We have seen examples that appear entirely valid, but we hope and expect a full list to be supplied to us before the Bill has completed its passage so that we can reassure the House. We also remain of the view that the Committee should be able to refer any concern about the use of an investigatory power to the Investigatory Powers Tribunal on behalf of Parliament. That would help to provide reassurance that there was a mechanism other than private complaint.
The Bill is capable of further improvement, but the Government have listened and I will certainly be supporting the Government on Second Reading. The Bill is undoubtedly necessary on the grounds of national security and is well intentioned. I trust that during its passage we will also be able to ensure that it fulfils the equally important role of being seen as an upholder of our freedom and liberty.
Before I begin my speech, on behalf of the Scottish National party I want to associate myself with the comments of the Home Secretary and shadow Home Secretary regarding the death of the prison officer in Northern Ireland and extend my party’s heartfelt condolences and sympathies to his family, colleagues and friends.
The SNP joins the MPs from all parties in the House who have grave concerns about many aspects of the Bill. We do not doubt that that the law needs a thorough overhaul and welcome attempts to consolidate a number of statutes in order to have a modern, comprehensive law. We also recognise that the security services and police require adequate powers to fight terrorism and serious crime. However, such powers must always be shown to be necessary, proportionate and in accordance with the law. In particular, powers must not impinge unduly on the right to privacy or the security of private data. We feel that many of the Bill’s powers do not currently pass those tests. For that reason, the SNP cannot give its full support to the Bill in its current form. We intend to join others in the House to ensure that the Bill is as extensively amended as possible. We shall be abstaining today, but if the Bill is not amended to our satisfaction, we reserve the right to vote against it at a later stage.
The Bill is a rushed job that comes on the back of a draft Bill that lacked clarity and did not go far enough to protect civil liberties. In recent weeks, three parliamentary Committees have expressed significant misgivings about many aspects of the draft Bill and made extensive recommendations for its revisal. The Bill was published barely two weeks after the ink was dry on the last of those three reports, leaving insufficient time for the Government to go back to the drawing board to deal adequately with the concerns expressed by the three Committees. Like others in the House, SNP Members were concerned to read last week that the United Nations special rapporteur on the right to privacy concluded that some of the Bill’s proposals fail the benchmarks set in recent judgments of the European Court of Justice and the European Court of Human Rights. [Interruption.] Government Members may scoff, but I invite them to read his report as it contains a careful exploration of recent case law and should not be dismissed lightly.
The benchmarks suggest that surveillance should be targeted by means of warrants that are focused, specific and based on reasonable suspicion. Under the Bill, however, targeted interception warrants may apply to groups of persons or more than one organisation or premises. Bulk interception warrants lack specificity and lack any requirement for reasonable suspicion, giving licence for speculative surveillance. The shadow Home Secretary questioned whether we should be using the term “mass surveillance” in relation to this Bill, and I wonder whether it would be more accurate to say that aspects of the Bill permit “suspicionless surveillance”, which leads to civil liberties concerns. Another aspect of the Bill that concerns us is that an actual threat to national security is not required.
The powers to retain internet connection records and the bulk powers go beyond what is currently authorised in other western democracies and thus could set a dangerous precedent and a bad example internationally. The only other western democracy to authorise the retention of material similar to internet connection records was Denmark, which subsequently abandoned its experiment having found that it did not yield significant benefits for law enforcement. I see the Home Secretary looking at me and I am sure that she will argue that her proposed scheme differs from Denmark’s, but the devil is in the detail, which we will need to consider closely in Committee. The USA is rolling back from bulk data collection having found it to be unconstitutional in some cases and of questionable value in fighting terrorism. It is for this Government to justify why they alone are required to go so much further than other Governments in western democracies. Such operational cases as have been produced are anecdotal and hypothetical and do not constitute independent evaluation of the utility of bulk powers.
If the hon. and learned Lady thinks that international comparisons are important, does she agree that the judicial authorisation procedure proposed by the Home Secretary goes further than in other European examples, such as Germany, the Netherlands and France?
We need to compare apples with apples and oranges with oranges. A more correct comparison is with jurisdictions such as Canada and America, the systems of which are more similar to ours than the continental European jurisdictions that the hon. and learned Lady describes, but I will come back to that when I get to authorisation.
I am sure everyone in this House wants to get the balance right between protecting civil liberties, and giving the security services and the police the necessary and proportionate powers to fight serious crime and terrorism. However, we in the Scottish National party believe that the Government’s attempt has not got that important balance right and we are looking forward to working with other parliamentarians to try to get it right. We are worried that the Government are not giving sufficient time for the consideration of this enormous Bill. The 14 Home Office documents relating to the Bill that were released to Parliament on 1 March, including the Bill itself, extend to 1,182 pages, which is almost treble the amount of material released with the draft Bill last November. There is a suspicion that the amount of material being released in large tranches, coupled with relatively short timescales within which to consider and amend proposals, is an indication that the Government do not really want proper parliamentary scrutiny of this. We are determined to do our best to make sure that sufficient parliamentary scrutiny is provided.
Let me be absolutely clear about this. I have been in this House long enough to see Bills go through the House where parliamentarians have complained when the Government have failed to bring codes of practice that should sit alongside the Bill to the House at the very first stage of the debate. This Government have brought those codes of practice to the House more than several days before Second Reading, precisely so that Members of this House have an opportunity to see them and consider them alongside the Bill.
The Home Secretary misunderstands my complaint—it is not about the fact that the material has been produced. My complaint is that the material has been produced with a timescale following thereon that is not sufficient for us to scrutinise it properly. I must make something crystal clear before I go any further: the SNP will not be morally blackmailed or bullied by Conservative Members into blind support for a Bill of dubious legality in some respects, which seeks powers that go beyond those of other western democracies. We are not going to tolerate any suggestion that by seeking proper scrutiny of the Bill and full justification for the far-reaching powers sought, we are being soft on terrorism and serious crime. I would associate myself with the other main Opposition party in that respect.
Let me give hon. Members an example of why they can be assured that the SNP is not soft on terrorism or serious crime. We have been in government in Scotland for nine years and we have shown ourselves to be a responsible Government. Although issues of national security are reserved, we have always co-operated closely with the UK Government, for example, when Glasgow airport was attacked by terrorists in 2007. Our record in fighting crime in Scotland is second to none. The Scottish Government have got recorded crime down to a 41-year low and we are committed to a progressive justice policy. We will not, therefore, stand accused of being “soft” on serious crime or terrorism, because that is simply not a fair statement to make.
In the coming years, we confidently expect to be devising the security policy of an independent Scotland, and it will be a responsible security policy that will not only seek to work closely with near neighbours on these islands, but will look to international models from other democracies and strive to take proper cognisance of international human rights norms and the rule of law. That is all we are about in our opposition and in our scrutiny of this Bill.
Our concerns about the Bill are not just our concerns. They are shared by: the parties sitting around me; many Conservative Members sitting opposite me; many of the members of three parliamentary Committees; non-governmental organisations; the technical sector; eminent legal commentators—more than 200 senior lawyers signed that letter in The Guardian today; communications service providers; and the UN special rapporteur on the right to privacy. [Interruption.] I hear somebody shout confidently from the Government Benches that the 200 lawyers who signed that letter are wrong. I suggest that he or she—I think it was probably a he—looks at the list of those who signed it and perhaps accords them a bit more respect; there is room for a difference of opinion here.
For clarification, so that the hon. and learned Lady is not seen to be speaking for my party, may I ask whether she accepts that the balances in the Bill that the Secretary of State has outlined are, by and large, supported by people in Northern Ireland, simply because we have gone through the experience of terrorism and know how important such safeguards are for the general public?
I always listen carefully to what the hon. Gentleman and his colleagues have to say because, as he says, they have experienced terrorism—indeed, they are, sadly, still experiencing it as a result of the tragic news we heard today. I apologise if I in any way included him in a sweeping statement, but I do not agree with him that the Government have got the balance right, and that is the whole purpose of my speech today.
The point I am seeking to make is that it is the job of a responsible Opposition not only to oppose responsibly and to scrutinise, but to articulate and inform public concerns. The public are concerned about this, and there is greater public knowledge about this Bill than perhaps there was last time around. A survey commissioned by Open-Xchange found that only 12% of the public believe that the Home Secretary has adequately explained the impact of the Bill to the UK public and presented a balanced argument for its introduction. I suspect that it is possibly a little unfair, pinning it all on the Home Secretary, because it is the responsibility of all of us in this House to inform our constituents about this Bill and where it is going.
I hope the hon. Gentleman will not mind if I make some progress for the time being and possibly give way later. I mentioned the letter to The Guardian. I am conscious that the right hon. and learned Member for Beaconsfield (Mr Grieve), the former Attorney General, has expressed his view on the matter. I would always accord that the respect it deserves, but I respectfully disagree with him. The letter to The Guardian from the lawyers today was focused initially on the problem of bulk intercept. Even the Interception of Communications Commissioner’s Office, the independent watchdog, has said that bulk intercept provides “generalised initial interception”, and that is the issue here—it is the generality, and the lack of focus and specificity, that the lawyers are worried about.
I should emphasise that I take the letter seriously, because I regard it as a serious matter. If what was happening was what was set out in the first objection by those writing it, it would be a very serious matter indeed: the House would be sanctioning a system by which there was generalised access to electronic communications, in bulk. The point at issue is that that is not what actually goes on at all. Not only that, but if one looks at the Bill, one sees that it is clear that that should not be able to go on and that we will prevent it from happening if there is any possible risk of it. We have been round this issue on many occasions, and this is why there is a difficulty of communication and understanding on something that is fundamental to the way in which the agencies go about this work.
I can only reiterate that I and many others, including more than 200 lawyers who signed this letter, disagree with the right hon. and learned Gentleman on this occasion and about this point. One thing that this issue illustrates is the importance of having very focused language in Bills dealing with such major matters of constitutional importance, rather than having vague language, which is not properly understood and which can on a later day be twisted by those it suits, to expand to cover powers that were not envisaged at the time. We are all well aware that that has happened in the past.
We should not dismiss too lightly the importance of the notion of the rule of law overarching this Bill. If the Government really want this legislation to be world-leading, they cannot have legislation that potentially violates international standards. As things stand, the UK is still bound by the jurisdiction of the European Court of Justice; there were no proposals to withdraw from the charter of fundamental rights in the agreement negotiated by the Prime Minister over Europe last month. We are still awaiting proposals for the repeal of the Human Rights Act, but the Government have recently been moving to reassure us that we will not be withdrawing as a signatory from the Council of Europe. We are therefore still going to be bound by the Court in Luxembourg and the Court in Strasbourg. Many distinguished lawyers believe that if this Bill is not significantly amended, the law of the UK will be on a collision course with those European Courts. I remind the Government that an unamended Bill could result in unnecessary and expensive litigation. It could require Parliament to revise the law all over again at some point in the future. That should not happen, provided that we ensure that the law meets international standards. [Interruption.] I hear Government Members shouting at me, “Which parts?” I will come to that when I get into the meat of my speech. [Interruption.] I suggest that they read the report that has come from the UN rapporteur on the right to privacy, and consider the law here. They may prefer to follow in the footsteps of Russia, which last December passed a law allowing its constitutional court to decide whether to comply with international human rights courts, but I would suggest that, on these matters at the very least, Russia is perhaps not the best role model for the United Kingdom.
I want to challenge the premise that the more privacy we sacrifice, the more security we gain, because that is not backed up by the evidence. Indeed, some of this House’s Committees have heard evidence that swamping analysts with data can impede investigation, because they are unable to find the crucial needles in the haystack of information before them. We should be looking at how to achieve security in a really intelligent way, not blanket data retention and suspicionless surveillance.
The Home Office responded to the Intelligence and Security Committee’s recommendations by simply adding one word to the start of the Bill so that the first part now refers to “privacy”. It has not, however, added any detail relating to any overarching principles of privacy. Its response to the ISC seems somewhat cynical.
I have indicated that the SNP is concerned about a number of aspects of the Bill. Time does not permit me to tackle all of them, but I am concerned about four in particular. I will endeavour to keep my comments to a minimum, bearing in mind that I speak on behalf of the third party in the House.
Our first issue with the Bill is the legal thresholds for surveillance; the second is the authorisation process, which the shadow Home Secretary has already talked about; the third is the provision for the collection of internet connection records; and the fourth is bulk powers, which I have already mentioned.
On the legal thresholds for surveillance, the Government essentially want to re-legislate on RIPA’s three broad statutory grounds. The SNP is not alone in its concern that those grounds are unnecessarily broad and vague and dangerously undefined. The Joint Committee on the draft Bill recommended that it should include definitions of national security and economic wellbeing, but that has not been done. The ISC recommended that economic wellbeing should be subsumed within a national security definition, finding it “unnecessarily confusing and complicated”. Those recommendations have been dismissed and the core purposes for which extraordinary powers can be used remain undefined and dangerously flexible.
On the authorisation of warrants, we welcome the move towards greater judicial involvement, and we acknowledge the fact that the Government have moved considerably towards the double lock. However, I agree with the shadow Home Secretary, because we also want an equal lock. Judicial review is not the same as judicial authorisation. Judicial review creates the illusion of judicial control over surveillance, and it does not achieve enough movement away from the status quo.
I want to give some concrete examples of that. The case law of the United Kingdom Supreme Court shows that, in civil proceedings that do not relate to deprivation of liberty, a less intensive standard of judicial review is applied—more Wednesbury reasonableness than strict necessity and proportionality—and that is why many fear that that is what will happen if the Bill is passed unamended. There will be little or no scope for review on the merits.
Will the hon. and learned Lady accept that she is simply wrong? In their evidence to the Joint Committee, of which I was a member, Sir Stanley Burnton, senior judicial commissioner, and Lord Judge, senior surveillance commissioner, were clear that the Wednesbury unreasonableness standards had no place in this context. The wording of the Bill is clear, importing a clear judicial review standard involving necessity and proportionality.
The hon. Lady will no doubt be unsurprised to hear that I do not accept that I am wrong. She is cherry-picking her way through the evidence that was heard. There was evidence contrary to the position that she has stated. I accept that there is a debate about this point, but I take the side that the review of judicial review principles does not go far enough. Why not go as far as other countries? Why not have one stage of judicial authorisation? That is the norm in comparable jurisdictions, by which I mean the United States, Australia and Canada. Judicial authorisation would help us, because it would encourage co-operation from US technology firms.
On a practical note, a two-stage process—whereby the issue goes to a Minister first and then to a judicial commissioner—risks delay. There is a huge volume of surveillance warrants, and it looks like there will be an awful lot more as a result of this Bill. It is unsuitable for a small number of Cabinet Ministers to deal with them.
I want to deal with another false premise that is often used to justify ministerial involvement in the issuance of warrants. Some people seek to argue that Ministers are democratically or politically accountable to this House on the issue of surveillance warrants, but that is a misconceived argument. Ministers are not really democratically accountable for their role in issuing warrants, because, first, the disclosure of the existence of a warrant has been criminalised and it will remain as such under the Bill. Secondly, all of us know—even those such as me who have been in this House for only nine months—that requests for information concerning such matters in this House are routinely parried with claims about national security. I do not accept that Ministers are practically, politically or democratically accountable to this House on the issuance of warrants. To return to the jurisprudence of the Strasbourg Courts, they have made it very clear that it is important to have effective supervision by an independent judiciary. We query whether the double lock mechanism meets that test.
We agree with many others that the case for collecting internet connection records, including the claimed benefit for law enforcement, is flawed. That is not just my say-so: there are many concerns across the industry. People who understand the technicalities far better than I do have explained the problem to me. I again associate myself with what the shadow Home Secretary said: the internet is not like the telephone system. An internet connection record cannot be compared to a telephone bill. The phone system consists of a set of records relating to when A calls B. If we collect phone system records, we will see at what time A called B and the duration of the call. As I understand it, the internet is more like a mailbox that collects packets of information and then takes them from A to B.
To take a rather middle-aged example, if somebody uses the Facebook messenger service, all the internet connection record will show is that he or she has connected to Facebook messenger. It will not show with whom he or she then communicated, because that occurs at a higher or lower level or in another unreachable packet. The internet connection record will not show the when, where and who that the Government say they want, and which they already get from phone records.
What the internet connection records will show is a detailed record of all of the internet connections of every person in the United Kingdom. There would be a 12-month log of websites visited, communication software used, system updates downloaded, desktop widgets, every mobile app used and logs of any other devices connected to the internet. I am advised that that includes baby monitors, games consoles, digital cameras and e-book readers. That is fantastically intrusive. As has been said, many public authorities will have access to these internet connection records, including Her Majesty’s Revenue and Customs, and the Department for Work and Pensions, and it will be access without a warrant. Do we really want to go that far? There is no other “Five Eyes” country that has gone as far. David Anderson QC said:
“Such obligations were not considered politically conceivable by my interlocutors in Germany, Canada or the US”
and therefore, he said, “a high degree of caution” should be in order.
Finally, let me turn to bulk powers. I have already made the point that even the Interception of Communications Commissioner’s Office says that bulk provides at the outset generalised initial intercept. We became aware of these bulk interception programmes only when they were disclosed by Edward Snowden in June 2013—whatever Members think about those disclosures and whether they were appropriate, that is how we became aware of the matter. This House has never before debated or voted on bulk powers, so we are being asked to do something very novel and very challenging, and we must do it properly.
The power to conduct mass interception has been inferred from the vaguely worded power in section 8(4) of RIPA, which illustrates the danger of vaguely worded legislation. Targeting bulk warrants at a telecommunications system or at entire populations rather than at specific individuals is a radical departure from both the common law and human rights law, yet that is the approach that will be maintained in this Bill. In many respects, that is the most worrying part of the Bill. Indeed, it is the part of the Bill about which the UN special rapporteur on privacy is most concerned. Let me read what he said, because it is very respectful of the tradition of the United Kingdom and it makes some very good points. He said:
“It would appear that the serious and possibly unintended consequences of legitimising bulk interception and bulk hacking are not being fully appreciated by the UK Government. Bearing in mind the huge influence that UK legislation still has in over 25% of the UN’s member states that still form part of the Commonwealth, as well as its proud tradition as a democracy which was one of the founders of leading regional human rights bodies such as the Council of Europe, the SRP encourages the UK Government to take this golden opportunity to set a good example and step back from taking disproportionate measures which may have negative ramifications far beyond the shores of the UK. More specifically, the SRP invites the UK Government to show greater commitment to protecting the fundamental right to privacy of its own citizens and those of others and also to desist from setting a bad example to other states by continuing to propose measures, especially bulk interception and bulk hacking, which prima facie fail the standards of several UK parliamentary Committees, run counter to the most recent judgements of the European Court of Justice and the European Court of Human Rights, and undermine the spirit of the very right to privacy.”
The rapporteur is appealing to the better tradition in this country, and saying that we should look at this Bill very carefully. He is suggesting not that we should throw it out, but that we scrutinise it very carefully, bearing in mind how far it intends to go in comparison with other countries and with existing international case law.
The hon. and learned Lady has made a very good speech this afternoon. Government Members should be working a little harder to reach out and build consensus. Before she finishes, may I invite her to say whether she will be supporting our call in Committee and on Report to make internet connection records accessible only through a warrant based on serious crime, not any crime, to give protection, and also for a clear definition of national security?
Those are both issues on which we will work with the Labour party. I have already indicated that we intend to attempt to amend the Bill extensively in Committee. We are very concerned about internet connection records. We query whether their retention is necessary or appropriate at all, but we will look seriously at proposals put forward by other parties and will work with them.
The SNP is in favour of targeted surveillance. We welcome the double lock on judicial authorisation as an improvement, but it does not go far enough. Our concern is, quite clearly, that many of the powers sought in this Bill are of dubious legality and go further than other western democracies without sufficient justification. It is for that reason that we cannot give this Bill, in its current form, our full support. We will work with others to attempt to amend it extensively. Today, we shall abstain, but if the Bill is not amended to our satisfaction, we reserve the right to vote it down at a later stage.
That is one of the most combative and partisan speeches in support of an abstention on the Second Reading of a Bill that I have heard from a Member of this House for a very long time. I urge the hon. and learned Member for Edinburgh South West (Joanna Cherry) and her Scottish National party colleagues to calm down a bit and accept that everyone is in agreement that this is a huge and comprehensive Bill. Its terms are often quite obscure, and it is not light reading to try to analyse it. I think we are all agreed that some issues need to be addressed in Committee and at later stages. Despite her excellently combative speech—I have nothing against partisan politics on the right occasions—it would be useful to accept that there is almost a consensus in this House about the principles that we should be adopting. As I think the standards of liberal democracy in this country at the moment are not too bad, we need legislation that enshrines them for the future, in case even wilder protest groups eventually get elected to the House, so that we stick to those principles.
The principles are, I think, that we wish to give the strongest possible support to our intelligence and policing authorities to defend the national interest and to defend our citizens. There are very real dangers in the modern world and we must not be left behind. When our intelligence and police services are dealing with terrorists, or serious organised crime—drug trafficking, human trafficking and so on—or child abuse, as people have said, I want them to be as tough as anybody else’s intelligence and police services. I want them to be as effective as they possibly can be and as successful in avoiding risk; that is essential.
Spies—the intelligence services—have had to do slightly odd things ever since they first emerged on the scene, ever since they started steaming open envelopes and started intercepting telephone calls. We must not be left behind by technology, and we must not be left behind by modern society. The spies have to act in the same way towards the internet as they have been acting towards envelopes in the post for the past 200 years. I hope we are all agreed on that. I hope we also accept that this poses a dilemma for a liberal democracy like our own, because we have to do this as well and as toughly as anybody else in the world, and to the highest technical standards, without compromising our underlying values. The reason we want such actions to be so effective is that we have, we hope, the highest standards of human rights and the highest regard for the rule of law and democratic accountability, but perhaps the thing we have neglected the most in recent times as the pace of events has speeded up is privacy—the privacy of the individual. We have recent examples—although not in this area—of the abuse of privacy by the press and others, of which we are only too well aware. I think our citizens expect that their privacy should be intruded on only in the right cases.
The real heart of the test of getting the balance right—we all talk about getting the balance right—is the proportionality of very intrusive powers, which should only ever be used when the national interest is threatened and our security is at stake. That should be—
I am sorry I am worrying on about this issue, but my right hon. and learned Friend has been Home Secretary. Let us suppose that there is a matter of national security and acute political crisis, and a Home Secretary feels it is necessary to authorise some snooping, for want of a better word—I am sorry to use that word—on a Member of Parliament’s communications with a constituent who has raised these issues. The Home Secretary said when I intervened earlier, “Don’t worry; the judge will authorise it or review it, and the Prime Minister will consider it too.” Judges are very responsible, but they do not really understand these acute political sensitivities. Should not somebody else, like the Speaker, have some sort of oversight to protect these very valuable communications between Members of Parliament and their constituents?
I do not think I am persuaded, although I do not totally reject my hon. Friend’s case. I was about to say that we must realise there are dangers in a democratic society if we are not constantly vigilant against some future Administration—although none that I have experienced, either in opposition or in government have done so—abusing this. There are western democracies —I think some things have happened in America at times that we would not approve of here—where political opponents, political rivals, have found the intelligence services and other sources of information used against them. [Interruption.] My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) recklessly suggests France. A Frenchman might not agree, but it would not surprise me if that were the case. In modern politics, the temptation to do that is actually quite strong.
The other reason for insisting that this legislation is as tight as we can make it is that it is all too easy to get accustomed to these things. I was Home Secretary, and Home Secretaries are overwhelmed with applications for warrants. In the middle of the night, doing a red box—contrary to popular belief, I was conscientious about my red boxes—there is very little time to make decisions. There are vast numbers of applications. I used to make a point of challenging one or two just to find out more detail than I had been given.
The volume hitting my right hon. Friend the Home Secretary is massive, compared with that which I experienced. That shows that there is a danger. In the intervening 20 years, the world has changed so profoundly that I suspect she has vastly more of these cases to consider than I had, and I suspect some of them involve much more difficult matters of judgment than most of the ones that I faced. Even in those days, when I suspect we were less concerned about these things, I found some pretty surprising applications being made if I went into what they were about. It is too easy even for the best people in the intelligence service—
No. Others want to get in and I do not think I will get any more injury time. I apologise.
It is too easy for those in the intelligence and police services to get used to such power. It is too tempting to use it against people who are causing trouble by making complaints or leaks. There have been examples of that, and that is what this Bill is about.
My right hon. Friend the Home Secretary has brought forward a Bill that makes the biggest advance that I can remember for a generation, introducing the principle of judicial involvement and judicial oversight, for which I have the greatest possible respect. It is a quite dramatic change. We have also strengthened the powers of the Intelligence and Security Committee, and I hope my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, will make the fullest use of them. That Committee is always faced with the problem that it cannot debate in public most of what is ever done or heard in private. We have to rely on having the right people to hold to account those concerned.
We need to get the Bill right. Most of the points are not the big, wide, partisan points that I was talking about a moment ago. They are in the detail—the devil is in the detail—and there are some quite important points that we should still question. It is true that there is a vast amount of activity under the general title of economic wellbeing. I have known some very odd things to happen under that heading. National security can easily be conflated with the policy of the Government of the day. I do not know quite how we get the definition right, but it is no good just dismissing that point.
Most of my points are Committee points and several have been raised already. I did not know that Igor Judge had given his opinion to the Select Committee that the Wednesbury test of reasonableness was not appropriate. He is an old opponent of mine in the courts, and an old friend of mine for most of his life. I am an out-of-date and extinct lawyer and he is a very distinguished and very recent lawyer. Presumably, if the judge thinks the Home Secretary is not following the legal principles, he can overrule an application.
Questions of judgment and proportionality are the most important of all and worry me most. The one Committee point that I shall raise, and the one I feel most strongly about, was raised by the shadow Home Secretary. I am worried by part 3. The whole debate is conducted on the basis that we should all lie fearful in our beds and that the Bill is designed to deal with terrorism, jihadists, child abusers and human traffickers. Actually, vast numbers of people are getting powers. Part 3 gives all kinds of curious public bodies—every local authority, county and district, where one official can get the approval of one magistrate—access to huge amounts of information. Too much is already available. I doubt the wisdom of that. I think we will find other points that should be corrected during the progress of the Bill through this House.
I associate myself with the remarks by the Home Secretary and others, and join in sending heartfelt condolences to the family and friends of the prison officer who tragically lost his life in Northern Ireland.
I shall start with the positive. Of course, my colleagues and I acknowledge that this Bill represents progress in some important respects. It is far more comprehensive than any previous piece of legislation and now covers all the powers that were previously unavowed. It contains important improvements in oversight and accountability, and compared with its predecessor, RIPA, it is easier to understand. However, as the Home Secretary, who alas has just departed, will know, she and I discussed the Bill yesterday. I am not a supporter of it, not for technical reasons but for reasons of principle, which I will come to. We feel that her Department has not responded in full to the criticisms of the three parliamentary Committees and that the Bill is, therefore, not yet in a fit state.
There are many problems, but I would like to highlight two in particular. First, as the former Attorney General, the right hon. and learned Member for Beaconsfield (Mr Grieve), said, the Intelligence and Security Committee was heavily critical of the way in which privacy protections were articulated in the draft Bill. In responding to the ISC’s request for a new part dedicated wholly to privacy, the Government have in effect done little more than change one word in a title. They have demonstrated precisely the point that the Committee made when it described the privacy protections in the Bill as an “add-on”.
I share the Committee’s concerns. The powers authorised by this Bill are formidable and capable of misuse. In the absence of a written constitution, it is only the subjective tests of necessity and proportionality that stand in the way of that misuse. The Bill should be far, far more explicit than it currently is that these powers are the exception from standing principles of privacy and must never become the norm.
The Home Office appears, unfortunately, to be institutionally insensitive to the importance that should be attached to privacy. A Department that cared about privacy would offer more than a one-word response to the ISC. A Department that cared about privacy would not have quietly shelved the privacy and civil liberties board, which this House voted to establish just last year. A Department that cared about privacy would have examined more proportionate alternatives to storing every click on every device of every citizen, instead of leaping to the most intrusive solution available.
As I know from my time in government, one of the greatest tools in going after precisely the perpetrators of such heinous crimes is matching the devices they use to them through IP addresses. That is why we passed legislation—the unfortunately acronymed DRIPA—which is being challenged in court by other Members of this House right now. It is also why, as I will explain in a minute, there are much more effective ways of achieving that objective than having a great dragnet, which is being advocated in the Bill.
Internet connection records, or ICRs, are my principal concern. We have been here so many times before—in 2008, 2009 and 2012. I cannot think of another proposal in Whitehall that has been so consistently championed, not, I should stress, by the police and the intelligence services, whose punctiliousness, scrupulousness and expertise I admire as much as anyone else, but by the Home Office, despite its failing to convince successive Governments. That is not the way that policy ought to be made.
The Home Secretary said that ICRs are significantly different from weblogs. The only differences that I can see are the exclusion of third-party data, welcome though that is, and the addition of some restrictions on the purposes for which the data can be accessed, although I note that some of those restrictions have now been relaxed again in clause 54 of the new Bill.
In terms of collection and retention, the scheme is the same—the name might be different, but the scheme is the same. Service providers will be required to keep records of every communication that takes place on their networks, and of potentially every click and swipe where there is an exchange of data between someone’s device and a remote server, for 12 months. It is the equivalent to someone in the days of steaming open letters keeping every front cover of every envelope from across the whole country stored in some great warehouse somewhere for 12 full months. It did not happen then, and it should not happen now.
The implication of this is very big indeed: it is that the Government believe, as a matter of principle, that every innocent act of communication online must leave a trace for future possible interrogation by the state. No other country in the world feels the need to do this, apart from Russia. Denmark tried something similar, as was referred to earlier, but abandoned it because the authorities were drowning, of course, in useless data, as they would have drowned in useless envelopes many years ago if they had tried this then. Australia considered it, but the police themselves said it was disproportionate. Many European countries, interestingly, have recently gone exactly the other way, relinquishing data retention powers following the ruling of the European Court of Justice in the so-called Digital Rights Ireland case in 2014.
At the request of David Anderson, QC, the Home Office has produced a so-called operational case for internet connection records, which we can all read. I would suggest that students of politics and government would do well to study that document, which is a model exercise in retro-fitting evidence to a predetermined policy. Naturally, it sets out how these data could be useful to the police and intelligence agencies. What it does not do, but should do, is to start from the operational need, where a lack of data is obstructing criminal investigations, and explore different options for meeting that need, while balancing the twin requirements of security and privacy.
It is simply false to claim that this dragnet approach is the only way to provide the Government with better tools to go after criminals and terrorists online. For example, as I said earlier, we could incentivise companies to move to the new industry standard for IP addresses at a much faster rate. That might sound terribly technical, but it is important, because our doing so would, at a stroke, go a long way towards solving the key problem of how to tie IP addresses on individual devices to suspects, which is one of the principal purposes of this Bill.
During my time in government, I saw very little sign that the Home Office had devoted any serious consideration to alternatives to ICRs. As the operational case illustrates, that is because this is a case not of evidence-based policy but of policy-based evidence. On top of that, we still do not know how it will actually work and how it would be defined. The Internet Services Providers Association states in its briefing for this debate:
“In its attempt to future-proof the Bill, the Home Office has opted to define many of the key areas in such a way that our members”—
these are the experts—
“still find it difficult to understand what the implications would be for them.”
The costs of ICRs are also unclear. The Government’s estimate is just over £170 million over 10 years, but the Internet Services Providers Association says that it does “not recognise” that figure, and BT has said that it believes the costs will be significantly higher.
Internet connection records are at the heart of this Bill. They are not just a technicality: they are principally at the heart of what information is stored on all of us for long periods by the Government in our name. This dragnet approach will put us completely out of step with the international community, there are practical problems with the proposal, and the terms used in the Bill are still unclear. That is why I urge Members in all parts of the House to scrutinise properly this far-reaching and poorly evidenced proposal, and to withhold parliamentary consent for such a sweeping power until the questions that I and others have raised are properly addressed.
Any Bill that fundamentally affects the relationship between the citizen and the state is bound to be controversial. This Bill is no exception, even though much of what it does is to consolidate in one statute powers to interfere in the citizen’s private life and communications that are presently to be found in existing statutes. Although article 8 of the European convention on human rights permits interference with the rights protected by it if
“in accordance with the law and…necessary in a democratic society in the interests of national security”
and so on, Parliament has a particular duty to examine closely legislation of this sort to ensure that the Government and the security and law enforcement agencies are not asking for too much and that we are not supinely giving them too much. We find the words “necessity” and “proportionality” frequently in this Bill, and that is not an accident.
Today’s debate is not new. Much of what will be said today will have been said in the debates on the 20th-century and early 21st-century legislation that is to be consolidated in this Bill. As technology has advanced we have had to adapt our laws, first, to cope with the ability of those who wish to do us harm to do so more quickly and effectively, and, secondly, to ensure that technology is not used by the state improperly to interfere with the citizen, just because it can.
As long ago as the 14th century, Parliament outlawed eavesdropping under the Justices of the Peace Act 1361. In essence, for the past 600 years or so, the intrusion into the private lives of others by use of illegal listening devices, be it the human ear or electric surveillance machinery, has been a topic of public debate. No one doubts that our law enforcement agencies and the security services need to be able to detect and prosecute serious crime, and to counter terrorist and other threats to the country and our fellow citizens. The threat to our country and its interests is, I am sure, as serious today as it has been since the second world war, and the capacity of the criminal underworld or our national enemies to transfer money, to traffic people for enslavement or sex or to move drugs, weapons and explosives has been greatly enhanced by the internet and other forms of electronic telecommunication. Whereas in 1361, the dark, a disguise and the speed of a horse were all that the King’s men had to contend with, so much of what we have to contend with now is unseen, unheard, instantaneous and undetectable. It is getting more and more difficult to stay ahead of the criminal gangs and terrorists who have access to the most sophisticated of communication systems, which can be operated from an iPhone anywhere in the world.
Does my right hon. and learned Friend agree that to help our police and security services to transfer what they do in the physical world, they need the powers to do that work in the digital world, and that without the Bill we are asking our security services to do their job with one hand tied behind their back?
I agree with that.
I do not have time in this Second Reading debate to do more than state that, as a matter of principle, I wholeheartedly support the aims and policy behind the Bill. The proposals to enable the state to intercept others’ communications or to interfere with equipment in a way that would, without this legislation or the laws it replaces, be unlawful, are sensible. The requirement for the Secretary of State to issue warrants that have to be approved by judicial commissioners, and other protections against the state’s misbehaviour with regard to the collection and retention of communications data, are rightly in the Bill. The ability to acquire bulk data is necessary. The checks and balances governing the police, and the internal supervision arrangements referred to in schedule 4, are right, subject to further consideration of the seniority of the officers involved. All that and more is justified and defensible in the interests of protecting us from harm.
That said, there is no room for complacency or any suggestion that the Bill is the perfect answer to a difficult set of problems, which are most obviously defined as the border between public protection and freedom on the one hand, and excessive state power on the other. In my time as a Law Officer I had, from time to time, to deal with the security services and the law enforcement agencies. I hope that I will not be accused of undue naiveté, but my experience of them in government was that they were scrupulous to obey the will of Parliament and the law. I was impressed by the fact that, from the top down, there was a genuine desire to do only what was right and to seek clarification where the law was complicated or capable of being misconstrued, so that they did not stray across the line between what was possible and what was lawful.
Based on my experience, I am sure that those entrusted with the type of work described in the Bill will conduct themselves within the law and that, if errors are made, it will not be for want of trying to keep on the right side of the law. The number of intercepts warranted every year by a Secretary of State may not be large in comparison with the billions of emails sent, mobile telephone calls made and internet searches carried out every year. It may be—I am guessing—that the three Secretaries of State will collectively issue fewer than 5,000 each year. If the law is to be obeyed, however, every warrant must be considered by the Secretary of State or a Scottish Government Minister. The Foreign Secretary, the Defence Secretary and the Home Secretary will have to give every application for a warrant from an intercepting authority the time and the close attention that it deserves.
Of course, I believe what the Home Secretary said in her response to the intervention from my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), and no doubt she will never take shortcuts. The current holders of those offices are hard-working Ministers, who are capable of reading a closely argued and complicated brief late at night after a long day of other work in their Departments, in Parliament or travelling here or overseas. Even if I have overestimated the number of applications for warrants that they will receive each year, I am reasonably sure that they will consider several every day. That is much reinforced by what my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) had to say a moment or so ago.
This should not be a tick-box exercise. Although I accept that some applications will be more straightforward than others, I do not expect that even in the easier cases, it will be a question of skim-reading the application and initialling it. Each application must be fully argued on paper on its own facts and considered personally by the Secretary of State. I hope that no submission to the Secretary of State will merely recite the wording of clauses 17 and 18; I hope that all submissions will go into detail about why the warrant is necessary, not least because they will have to be carefully reviewed by a judicial commissioner. That is all the truer in urgent cases when a judicial review follows the issuing of the warrant, or in cases involving legal privilege under clause 25.
My concerns about the practicalities of all this are added to when one considers this point, which was also made by my right hon. and learned Friend. Authorisations under part 3 of the Bill are likely to be numbered in the many hundreds of thousands every year and will be made by what, to my eye, look like middle-ranking police officers and other officials. As one can see from schedule 4, those officials are inspectors and superintendents, majors and lieutenant colonels, and other civil servants of that rank. As I learned yesterday, some of them will be part-timers. I need to be assured that the necessity or expedience of every case will not outweigh the need for formality and proper scrutiny of every such application. If we are to have complete confidence in the vetting system, I urge Ministers on the Front Bench and the rest of the Government to think very carefully about those aspects of the process.
Finally, clause 222 requires the Secretary of State to prepare a report on the operation of the Act five and a half years after the Bill has been passed. In any view, that is too long. I suggest that it should be done after two years. If the Government refuse to reduce the period, I hope that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and the ISC—as well as Mr David Anderson, the independent reviewer, who produced an invaluable report last summer—will want to do so themselves.
A comment often made to explain why political events go on for so long is that, although everything that needs to be said has been said, not everybody has yet said it. In the spirit of trying to offer something different to this debate, I want to speak as a member of the Science and Technology Committee, which we might call Parliament’s geek squad, and raise a third set of concerns about the Bill as it currently stands.
Members have already talked about proportionality and people’s concerns about the balance between security and liberty, about the challenges of extra-jurisdictional legislation and whether, in a global world, we can pass national laws that make sense. I want to add concerns about the technical aspects of the Bill and, frankly, about whether it will work. Is this legislation designed for digital natives who are comfortable with the modern world, or has it in fact been designed by what we might call digital refugees—people who run away from the reality of the modern technical advances with which we are trying to deal?
All of us have had the experience of trying to explain to a person aged under 20 that, no, we could not google our homework when we were at school. Many of us may have jumpers that are older than the internet, which has fundamentally changed our lives. In this country, a third of all divorces contain a reference to Facebook, a technology that came into our lives only in 2007, but has fundamentally transformed that most personal of relationships. When we come to thinking about legislation that takes account of modern technologies and the ways in which they change, such legislation must be based on an understanding of those technologies and of the consequences of such changes to the law.
With that in mind, it was when the Committee looked at the question of surveillance, especially internet connection records, that concerns arose. Concerns arose in particular about the idea that, as the right hon. Member for Sheffield, Hallam (Mr Clegg) said, a dragnet could be used to bring together internet connection records for every single member of the British population for 12 months, and about what that might entail.
There is a fundamental challenge at the heart of the Bill about the idea that it is possible to separate somebody’s contact data from their content data. Many internet companies have made that point and said that they are concerned about such a definition. As yet, the legislation has not completely grappled with that definition. The Bill makes a distinction between identifying IP addresses and being able to know whom people have contacted, and what it calls anything else that
“might reasonably be considered to be the meaning…of the communication”.
That definition makes sense when we are talking about phone records, but the legislation has to cope with the world to come, not the world that has gone. If I send a message through Outlook, others do not need to know the content of the message to know that it is a request for a meeting. When we talk about knowing which websites people have visited, that of course brings with it content analogies: if I visit the Refuge website or the Alcohol Concern website, that is contact data, but because it is online contact, by its very nature it carries content information.
I very much welcome the shadow Home Secretary’s comments about our needing to challenge such definitions. We need a much tighter definition of what it means to have an internet connection record and of what information is held as part of that record. All three of the Committees that have looked at the legislation have called for that. However, to date, we have not heard from the Government an understanding that in the modern world the distinction between content and contact is not viable. The distinction between entity and events, and everything else, must be much tighter in the Bill. If it is not, the question of who can access that information bleeds into the question of who can access the meaning of those content combinations.
Such questions will become starker as the internet develops, and particularly with the internet of things—I see that a few digital refugees on the Government Benches, and perhaps even some Labour Members, are querying what the internet of things is. It is the growing number of physical objects that are connected online. This Christmas I was given a coffeemaker that I can set off using my mobile phone, and it is wonderful to sit in bed and order several cups of coffee. So far, we have online airbags in cars, online burglar alarms, and some Members might even set their home electricity online. All those forms of contact are created through online mediums. We will soon have pacemakers that are electronically set up. People will be able to access their bank accounts in the same way. All such contact is potentially information that could be created in an internet communication record. It could also be useful in an investigation.
With the internet connection record, we are looking for a past history for a future crime. If someone is investigating a child abuser or a terrorist, is it not relevant to see their past records and whether they have accessed sites with relevant material? We would be able to see that from contact information.
I am not quite sure about the hon. Gentleman’s point because no one is suggesting that we would not want to access such information. My point is that, from a technical perspective, separating contact data from content data is much more difficult than the Home Secretary suggests. That means that we need more honesty about the powers we are proposing that our police and investigatory authorities should have.
For example, if someone can get information about my use of an electricity meter, they might want to look at the contact between me and that meter. If I were accessing it a lot, they might wonder what I was doing in my home that required so much heat. Drug enforcement agencies might look at such contact patterns, and inevitably that brings with it content about what someone is doing. That does not mean that we do not need methods to access that information; it means that one thing missing from this debate to date is an honesty about the technological complications that will come with this Bill, and we must address those concerns.
Perhaps I can reassure the hon. Lady. The Home Secretary emphasised that we continue to have discussions with the providers for exactly the reasons she has described. It is essential that they can do what we oblige them to do, and we are determined to put those mechanisms in place. The right hon. Member for Sheffield, Hallam (Mr Clegg) gave the game away because he said that repeatedly, over time, security services and the police have requested the ability to carry out such work, for the simple reason that they need to do that in order to protect us all.
I am grateful to the Minister for acknowledging that the idea that one can always separate contact from content data is not viable. We need a much more honest debate about who will be able to access that information and under what circumstances. I hope that that will be discussed in Committee, because as the Bill is currently drafted, we cannot justify to our constituents the fact that their content data may be accessed—however inadvertently—because of the nature of technology. We must address that.
Let me move on to the question of honesty about encryption. A lot of technology companies and the technology industry in our economy are concerned about how the Bill may affect encryption. The Bill gives the Secretary of State the power to serve technical capability notices, and to require companies to remove their electronic protection. Again, it is not yet clear what that means, what protection exists in terms of encryption technologies, and what that might mean for other consumers of services. That is a real concern for many.
We know that encryption is a vital part of security for services. Constituents will mention Ashley Madison and TalkTalk, or they may be aware of hospitals that did not have security measures in place and had their systems hacked. We are talking about whether the Government will require those companies to bring in those backdoor opportunities for accessing information. We need much stronger scrutiny of the Bill and of what the encryption process means, not least because removing some of the encryption requirements would create a security risk. The Government are making that choice in return for the ability to do some of the things they are talking about doing, and we need to be honest with the public about that.
There is also a question relating to the security of data. In 2009, the Conservatives made great play of turning back the “surveillance state”, but it seems to me that they are seeking to privatise the databases they told us they did not want to see developed. The Bill asks companies to hold the data, but the security of that data is not clear. We know that having to hold everybody’s internet records for a whole year will be a honeypot to hackers. That will be a massive security risk unless security processes are in place—even if data are held by private companies. The fact that the Government have not clarified who will pay for that security, what a reasonable cost is and how to resolve disputes about what a reasonable cost will be, leaves open a gap that not just hackers but consumers will be deeply interested in. The Government must be much clearer about how they will make sure they protect consumers from having their information hacked as a result of requiring companies to gather data.
There are similar concerns about bulk interference and encryption data, but my central point is this: there are questions about the proportionality and the judicial extent of the Bill and working overseas, but there are also concerns about technology. We have to be able to answer questions on all three issues to be satisfied that the Bill is appropriate for the 21st century. I hope those issues will be addressed by amendments in Committee. I believe that many members of the Science and Technology Committee share concerns about whether our technology industry is comfortable with the proposed legislation.
For the Government to fail to act on any one of those questions will compromise the others. If we do not get the technology right and do not work with our overseas partners, we will not keep anybody safe. We could, in fact, create more problems. I hope Ministers will listen to those concerns and I hope they will recognise the spirit of what they said in 2009 about the importance of rolling back the surveillance state. I also hope they will be digital natives, not digital refugees. I will not support the Bill on Third Reading if they do not change it.
It is a pleasure to follow the hon. Member for Walthamstow (Stella Creasy) and her interesting comments.
The Home Secretary and the shadow Home Secretary both, quite correctly, began by paying tribute to the prison officer from Northern Ireland who died today after a cowardly attack on 4 March. We should remember article 2 of the European convention on human rights:
“Everyone’s right to life shall be protected by law.”
I respect the hideous difficulties Ministers have had in drafting the Bill, bringing together the conflicts between liberty and security. I fully understand that there are calls for improved scrutiny associated with greater powers. However, we must take great care to avoid damaging the effectiveness of operational decision making which protects our citizens. Effective operations rely on the capacity for operational agility in the face of ruthless and innovative opponents. After a decision has been made, I am firmly in favour of a more rigorous and rapid review process.
First, I would like to state that I regarded signing warrants as a key responsibility when I took over as Secretary of State for Northern Ireland. Sadly, there were elements in the republican community who would not accept the settlement we had inherited from the previous Labour Government and were determined to pursue their aims by terrorism. We rapidly reequipped various agencies at considerable public expense. I was fully aware that our security services, facing a deterioration in the security situation and a raised threat level, could operate efficiently only if decisions were made rapidly from the top. I made clear that I was always to be disturbed at any time if an urgent decision was required. The vast majority of warrants were signed in an orderly manner, in regular slots built into my diary; those slots were a priority. I was occasionally woken up very early in the morning and asked to make an extremely urgent decision. I am deeply concerned that the proposal to have a dual lock, involving endorsement by a commissioner, will bring an element of delay and confusion to effective operational decisions. I understand that there are calls for more accountability and scrutiny of these vital but necessarily confidential decisions, but I believe very strongly that only a democratically elected Secretary of State, who is ultimately accountable to the House of Commons, should make such decisions.
I am listening to the right hon. Gentleman’s remarks, and I did similar things as a Minister, but is it not the case that a politician’s mind will always turn to the question, “What if I don’t sign this?”, and the public embarrassment that might come from not signing? Is not the further judicial check a helpful double lock so that a politician need not worry that a failure to agree might lead to public embarrassment?
No, I think the politician’s personal feelings are wholly irrelevant. They are responsible to the public and the House and have to report on those decisions, and it is they who should be exclusively responsible for these very difficult, subjective decisions.
During my time, I had real respect for the thoroughness with which warrants were prepared, but on occasion I refused them, and there was a clear decision-making procedure. I was also acutely aware that my decisions would be subject to review after the event, and I respected the review process. As shadow Secretary of State, I spent three years visiting Northern Ireland every week, and I built up a level of knowledge that was really useful when I took over as Secretary of State. Some decisions had to be made in imperfect conditions with imperfect information. That is the nature of working with intelligence to protect the public. A decision sometimes required a personal judgment about what was in the public interest, not just a legal interpretation.
Does my right hon. Friend agree that the point made by the hon. and learned Member for Edinburgh South West (Joanna Cherry) was a fair one: it is very difficult for the House properly to scrutinise what was the thought process and evidence base because so much of it will be considered in the national interest and so will not be transparent to us in the Chamber?
No, I was fully aware that I had to come regularly to the House to answer questions and that I could be called before the Select Committee. There were various methods by which the House could scrutinise my decisions.
The key thing is that the public demand for more scrutiny, which I fully appreciate, should not interfere with operational agility and thereby put the public at risk. The current system works and could, with amendments, offer much greater scrutiny. I am in favour of a more rigorous and rapid review process. The proposal in the Bill is that a warrant could be issued in emergencies but would be reviewed within three days. This could be made applicable to all warrants, and I would welcome that, but other practical and operational issues do not appear to have been considered.
It is not clear in the Bill what the procedure would be should a commissioner refuse a decision by the Secretary of State. There is potential for even further delay and confusion in clause 21(5), under which the Secretary of State may go to the Investigatory Powers Commissioner. Under the current arrangement, it is quite clear who is responsible: the Secretary of State, accountable to Parliament. Under the proposed system, with possible delays and divided decision making, it is not clear who is ultimately responsible should something go horribly wrong, with devastating consequences for the public. Should a terrorist operation be tragically successful because of delay and differences of opinion under the proposed dual lock, who would be legally responsible? Who would the relatives hold to account and potentially sue? The Secretary of State will be accountable to the House of Commons, but to whom will the judicial commissioners and the Investigatory Powers Commissioner ultimately be accountable?
The impossible position in which distinguished lawyers will be placed is highlighted in clause 196(5) and (6). Lawyers and judges are trained to interpret the law meticulously, but these subsections require very subjective political decisions. Subsection (5) provides:
“In exercising functions under this Act, a Judicial Commissioner must not act in a way…contrary to the public interest or prejudicial to…(a) national security, (b) the prevention or detection of serious crime, or (c) the economic well-being of the United Kingdom.”
Subsection (6) reads:
“A Judicial Commissioner must, in particular, ensure that the Commissioner does not…(a) jeopardise the success of an intelligence or security operation or a law enforcement operation, (b) compromise the safety or security of those involved, or (c) unduly impede the operational effectiveness of an intelligence service, a police force, a government department or Her Majesty’s forces.”
No law book can possibly guide a distinguished lawyer on these questions, which ultimately require a political judgment. In order for these criteria to be met, the Secretary of State should clearly be accountable here, in order to guarantee our security services’ operational agility and the ability to react swiftly and at short notice.
According to the principle of the separation of powers, it is clear that lawyers should not make operational executive decisions that might require some personal judgment. Montesquieu himself said:
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…Again, there is no liberty, if the judiciary power be not separated from the legislative and executive”.
Lawyers should be brought in after the decision, in order to review the process by which the decision was arrived at. The Bill effectively brings judges into the Executive, giving them the difficult role of being both scrutineers and Executive decision makers. These roles require very different skills, and according to the separation of powers, they should be kept separate for good reason.
The further important deep flaw in the Bill applies particularly to Northern Ireland. It was illustrated in a high-profile case last October when members of the notorious Duffy family were accused of a number of terrorist offences arising out of a security services surveillance operation. The trial collapsed when the judge ordered disclosure of the tracking devices, and the case has been strongly made that as a result of this trial’s collapse, the public are at risk because of a judge’s insistence on total transparency procedure. In practical terms, this is unworkable in the current circumstances in Northern Ireland. The demand for transparent disclosure of the technology used, as required by this judge, would have compromised the methodology that keeps the public safe. It would also have educated terrorists on how to avoid detection in the future.
I am concerned, too, about clause 194(3)(e), which requires the Prime Minister to consult the First Minister and deputy First Minister before appointing an Investigatory Powers Commissioner or a judicial commissioner. I was the first Secretary of State for Northern Ireland to have responsibility, following the devolution of justice and policing to local politicians, and it was always clearly understood that the Secretary of State maintained responsibility for matters of national security; the Police Service of Northern Ireland and the security services reported to him on those matters.
I draw the attention of Ministers to the wise words of the Joint Committee, when it said:
“We are aware that particular sensitivities around these issues may apply in Northern Ireland. The Government will need to reflect on these sensitivities as this legislation progresses.”
That can be found in paragraph 419. Will the Government please commit to that?
Sadly, very few Members of either the House of Commons or the House of Lords have direct experience of this issue. Law-abiding British citizens are under threat from dangerous terrorists every day. I am acutely aware that deaths and injuries have been prevented not just thanks to the supreme professionalism of our security services, but thanks to the current swift decision-making process, which gives them critical operational agility. It will be tragic if this is lost because so few Members of Parliament understand the very real benefits of the current process. I am therefore opposed to the dual lock proposals in the Bill, and I hope they will be removed in Committee. The signing of warrants should remain the exclusive responsibility of the Secretary of State, accountable to Parliament, and the review process by distinguished members of the judiciary should be carried out sooner, more frequently and more thoroughly after the decision has been made.
I shall come on in a few moments to some of the points raised by the right hon. Member for North Shropshire (Mr Paterson). Let me say, however, that I am deeply disappointed with the Bill, which does not even attempt a broad consensus outside this place on the balance between measures to protect the country from terrorism and those protecting the privacy at the same time of the overwhelming majority of citizens. I am not one of those who in any way minimises the continuing threats from terrorism. I well remember the atrocities of 7/7 and I know, as we all do, what happened over the weekend on the Ivory Coast, when a five-year-old lad was put to death by the terrorists. The boy was begging for his life, but it was no use. I am as aware as anyone of the murderous nature of the terrorist threats we face, and have no desire to minimise it in any way whatever.
One would have hoped that, with existing legislation due to lapse, any new measure would be of a different kind from what we have today—less severe and less comprehensive in many respects than some of the Bill’s clauses, which in my view are bound to be controversial and will remain so if the Bill becomes law.
The right hon. Member for North Shropshire was not happy about the judicial process involved, but I take the opposite view. If these measures are indeed going to be brought in, all the more reason for some judicial involvement. That would make it better than it otherwise would be. My criticism—again, it is very different from his—relates to the extent to which the judicial commissioners are likely to be able to probe the case for the warrant that the Home Secretary wants to be issued. It seems more likely to me that a judicial commissioner will merely have to be satisfied that all the necessary processes have been pursued. To what extent would a commissioner dealing with a case in which a warrant had been applied for be able to hear counter-arguments?
If I were asked what I considered to be the most objectionable aspect of the Bill, and why I could never vote for it in any circumstances, I would cite clauses 78 and 79, which require the retention of communication data—and internet connection records of all kinds—for up to 12 months. Let us be perfectly clear about that. Let us have no illusions about it. Is it really desirable to retain, for that period, information relating to those who are not suspected of any criminal activity, and who, needless to say, constitute the overwhelming majority? Does anyone really believe that that will help the fight against terrorism? It could rather be argued that, by its very nature and given its controversial aspects, it is likely to be more counterproductive than helpful. If those clauses do not undermine privacy, I can only say that the very word “privacy” loses all meaning. Notwithstanding all the denials from Ministers, I would describe this as snooping on a massive scale, although we have been reassured that the actual content will not be looked at.
Mention has been made of the powers that will be given to what are described as “relevant public authorities”—not just the security authorities—to obtain communication data. My right hon. Friend the Member for Leigh (Andy Burnham) and other Labour Members have rightly pointed out that that could be used against trade unions. The 10 purposes for which data can be required include “public safety”, “financial stability” and
“the economic well-being of the United Kingdom”.
All those purposes could be used against trade unions in industrial relations cases. Labour Members should be, and are, very much on their guard, and I trust that those provisions will be examined in great detail in Committee.
The Joint Committee made some helpful recommendations relating to bulk personal dataset warrants, which, if put into effect, will improve the Bill. Following the Edward Snowden revelations, about which there was a great deal of fuss, the United States Senate took steps to restrict the collection of bulk communications except when there was a reasonable suspicion of association with international terrorism. The Bill is, essentially, doing the reverse—and the United States would have been unlikely to take measures to restrict those communications had it not been for Edward Snowden’s revelations.
Bill Binney, a former technical director of the United States National Security Agency—presumably he is not one of the usual suspects, and should know what he is talking about—has argued in articles, and in a letter published in The Times on 1 March, that bulk collection simply does not work. Scanning every single person’s communications, he says, simply overloads the scanner with data and false targets. What is really needed—and this is pretty obvious—is an emphasis on target suspects and their social networks.
We are being told today that the Bill is absolutely essential, and that if we want to combat terrorism, the way to do it is to pass this legislation. I am reminded, however, that following 7/7, we were told that it was absolutely essential to have 90 days, and later 42 days, of pre-charge detention and that unless we passed legislation to that effect, the country would be greatly threatened. Those of us who opposed it were accused of undermining security. Today, no one on either Front Bench would dream of recommending 90 or 42 days of pre-charge detention.
So this is just a warning that we should be very careful about giving away powers that it would be very difficult to take back. I said at the beginning of my speech that I was not persuaded that this legislation was justified. I think it is wrong and disproportionate, and I hope that if it is to become law, it will be substantially amended.
When I was listening to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) talking earlier about steaming open letters, I was reminded of the fact that, in 1929, the then American Secretary of State, Henry Stimson, shut down the State Department’s code breaking department with the words:
“Gentlemen do not read other gentlemen’s mail.”
That was quaint even then, and the action was quickly reversed. Today, everybody recognises the vital importance of targeted surveillance of dangerous criminals of all sorts.
I think everyone in this House wants to see our intelligence agencies and police forces equipped with effective measures that will help them to do their job. I do not think that there is any difference between us on that issue. However, the presentation of this Bill has required the Home Office publicly to avow a vast range of surveillance powers that to date have existed in secret. These powers seem to be rather greater than those used by our allies—certainly greater than those used by America or Germany. Some of them would have been struck down as unconstitutional in both those countries.
What seems to have happened is that these powers have been developed over the past 20 years using a vast thicket of existing legislation, largely without the knowledge of Parliament. Many of the agencies’ current capabilities were never considered when the legislation that underpins them was created. I can say with absolute certainty that that is true of the Intelligence Services Act 1994, which as a Minister I took through Parliament. It was never envisaged, for example, that that legislation would provide for the acquisition of bulk personal datasets.
I could give the House many further examples, but time is short so I shall give a single example of how, with the best of intentions, the creep of surveillance has happened. It relates to the erosion of legal privilege. Until the late 1990s, when an intercept or bug was recording a criminal suspect, the bug was turned off the moment the suspect started talking to his lawyer. That is what used to happen; the position was absolutely clear. Then in 2000, the Regulation of Investigatory Powers Act was introduced. RIPA was silent on legal privilege. It was simply not mentioned in the Act at all. However, the Government of the day chose to interpret that silence as acquiescence that RIPA did allow for the surveillance of privileged communications. So we went from a situation in which recording equipment was switched off in those circumstances to one in which privileged conversations were recorded and kept in a separate, red-flagged database. That was how it worked.
This matter eventually came out in 2009, when two Law Lords, Lord Phillips and Lord Neuberger, expressed their incredulity that the Government had in effect been “sanctioning illegal surveillance”. At least in those initial stages, however, the illegally collected information was red-flagged and kept from being allowed to pervert the judicial process. Then, either during or before 2014, the rules were changed to allow the Government lawyers to see the intercepts. This is extremely dangerous to the operation of justice. It could destroy equality of arms, which in turn could undermine perfectly proper cases against terrorists, leading to their being freed on the basis of an improper prosecution.
That single example of the actions of the agencies and the Home Office is important in its own right, but I cite it here as a demonstration of what has been happening over the past 20 years. Owing to the difficulty of the counter-terrorism task and the opportunities afforded by technology, the agencies in particular, but also the police and other organisations, have quite understandably sought to extend their powers, using, in this case, the silence of RIPA to erode legal privilege. We have seen that again and again. We saw it in the Intelligence Services Act 1994, which I mentioned, and in the Telecommunications Act of, ironically, 1984, which followed the decision to privatise British Telecom. That is why this Bill must be drafted incredibly precisely and carefully.
As it stands, the language in the Bill is designed to confuse. My right hon. and learned Friend the Member for Rushcliffe, a previous Home Secretary, and I were talking about this and both of us had trouble understanding its 250 pages. That must be put right and that is why I am concerned about the Report stage. There are many other significant flaws in the Bill that must be put right, such as the lack of sufficient privacy protections, the collection of ill-defined bulk personal datasets, wide and too-easy access to retained communications data, the prime ministerial appointment of judicial commissioners—it goes on and on. I have about a dozen items here, but I do not intend to go through them all.
In my final couple of minutes, I want to touch on the bulk capabilities. The House should be under no misapprehension as to how broad and potent the powers are, even though the Chairman of ISC, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), is quite right to say that the agencies do try to be as economical as they can in using them. The powers allow for the interception of vast quantities of foreign and domestic communications and the acquisition of the entire nation’s phone and internet records, and permit industrial-scale exploitation of phones and computers. The fundamental question is whether those powers are effective.
In the US, the bulk collection of citizens’ data has been heavily curbed as it was considered to be
“not essential to preventing terrorist attacks”.
Most damningly, the American President’s privacy and civil liberties oversight board said that it was
“aware of no instance in which the”
NSA’s bulk records programme
“directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
There are genuine concerns that the collect-it-all approach actually makes things worse, which goes back to the point about Bill Binney referred to by the hon. Member for Walsall North (Mr Winnick). I say this to the House and to the ISC: the Senate intelligence committee, the ISC’s more powerful equivalent in the US, was initially persuaded that bulk data collection had prevented over 50 terrorist attacks. The staff of the Senate judiciary committee then went through the claims one by one and found only one case, and it was not a terrorist attack but an $8,000 money laundering case. That is how useful the powers were and that is why they have been curbed.
This Bill, or something like it, is absolutely necessary. It replaces 66-plus other statutory mechanisms, so, in the interests of transparency, we need something to put in their place, but it grants sweeping powers with insufficient safeguards and not enough consideration of privacy. I ask all parts of the House to press for more time on Report to allow for reasonable amendments to the legislation that will put in place a world-standard law.
I will finish on this point. Other countries, in particular the most unpleasant ones, are always happy to use Britain as an example for something that they should not be doing. That is why I opposed 90-day detention and many other illiberal things that too many Governments have done.
I wanted to contribute to today’s debate, because, like several other hon. Members in the Chamber, I served for four months on the Joint Committee on the draft Investigatory Powers Bill, which considered the Bill in some detail. They may be four months of my life that I will never get back, but scrutinising the Bill was certainly a worthwhile experience. The Joint Committee was appointed by the House in October and met from 25 November under the chairmanship of my noble Friend Lord Murphy of Torfaen. I pay tribute to him and to the Clerks of the Committee for the way in which they stewarded its deliberations. We had 54 witnesses and nine evidence sessions. We met in public and in private to scrutinise the Bill, in recess and out of recess, when the Commons was sitting. We received 148 submissions and more than 1,500 pages of evidence. We visited GCHQ and the Metropolitan police, and we gave detailed, fair, cross-party consideration to a difficult subject to bring forward proposals on. Our conclusions were relatively unanimous.
The first conclusion was that we need to modernise the current legislation, including that which expires on 31 December. There is therefore a clear need for this Bill, in order to modernise RIPA, the terrorism Acts, the Police and Criminal Evidence Act 1984 and other legislation to hand. We have to look at, and we ensured that we did look at, not only the issue of privacy, but the issue of security, both of which were central to our concerns. Although we welcomed consideration of the report, we did make 86 recommendations. If people want to read about this, as I am sure they will, they will see that our report contains 157 comments and recommendations in the summary and conclusions to improve the Bill and make it stronger, and to address some of the concerns that people raised.
I wish to draw the House’s attention, first and foremost, to our first recommendation, which states:
“Resolving the tension between privacy and effective law enforcement in this area is no easy task. The Home Office has now come forward with a draft Bill which seeks to consolidate in a clear and transparent way the law enabling all intrusive capabilities. The Committee, together with the many witnesses who gave evidence to us, was unanimous on the desirability of having a new Bill.”
The Labour party members, the Conservative members, the SNP member, the Liberal member, Lord Strasburger, the bishops and the independent members were unanimous on the need for a new Bill.
The question is: why do we need this Bill? I believe we need it for several reasons. First and foremost, we need it to tackle terrorism, strong and serious organised crime, paedophilia and organised crime across the board. If we look at the annexes to the reports presented to us as part of our evidence from, among others, David Anderson, we will see cases where terrorism has been stopped by activities dealt with under this Bill. For example, in 2010, an airline worker in the UK who had access to airline capability was stopped as a result of access to bulk data. We have information on GCHQ intelligence uncovering networks of extremists who had travelled to Pakistan and then been stopped as a result of the acquisition of bulk data. We have GCHQ evidence on bulk data that have tracked down men who have been abusing hundreds of children across the world and are now in UK prisons because of the powers dealt with in this legislation. We have information on criminal investigations into UK-based crime groups that were supplying class A drugs from south America, where intercept evidence provided intelligence on their modus operandi and they have subsequently been put in prison, resulting in fewer drugs on our streets. We have evidence, and we took such evidence in the Committee, about criminal investigations into London-based gangs, money laundering and dark web activities.
I took some of the previous legislation in this area through as the then Minister for Policing, Crime and Counter-Terrorism under the Labour Government, but things have changed since then. Six years ago, I did not use Twitter, I never had Facebook, and I did not have WhatsApp or the Fitbit that I have on my chest today—now I can talk to my family using them. We have not got the information material now to be able to keep up with the technology, which has advanced. If we look at the type of activity being covered by these Bills, we will see that terrorism is pretty low on the list, at only 1%. Other offences are crucial, such as those relating to vulnerable or missing persons, as well as drug offences, homicide and financial offences, and they cover a large bulk of the amount of work done to date. As I have said, the Joint Committee made 86 recommendations and the Government accepted 46 of them. I hope that we can look in Committee at 20 other recommendations that the Joint Committee made. To do that, this House needs to pass this Bill. I support the decision by my Front-Bench colleagues and the SNP to abstain, but, given that there are Conservative, Labour, SNP and, indeed, Liberal Members who support the Joint Committee’s report, I hope there will not be a vote today and that we will let the Bill go through and then deal with the key issues that my right hon. Friend the Member for Leigh (Andy Burnham) has mentioned, which are important to the Labour party. I hope we will also look at the 20 or so Joint Committee recommendations that have not yet been adopted by the Government.
The key issues include those mentioned by the right hon. Member for Haltemprice and Howden (Mr Davis) with regard to the definition of internet records. They also include targeting warrants for equipment; recommending and removing emergency procedures; recommending further safeguards for the sharing of information with overseas agencies; and more support and recommendations for strengthening the protection the Bill affords to journalistic material.
I am listening very carefully to my right hon. Gentleman and I agree entirely with everything he has said. Before he finishes, will he say a little more about the Committee’s recommendation on the definition of national security? The Committee raised that as a concern and the term has been used to cover a multitude of activities. Does he agree that it would be better for the Government to provide a clear definition of national security in the Bill and to drop the justification of economic wellbeing for the more intrusive warrants?
I cannot speak for the Committee as a whole, but my right hon. Friend makes a very important point. We asked, “What is national security?”, and the answer we got was, “What the Government deem it to be.” Perhaps it is time to make a definition.
My right hon. Friend said that the Labour party would set important challenges. If he looks at the 20 cross-party recommendations that have not been accepted—I am sure that he and the Government will do so—he will see that we have the ability, here and now, to make real and effective changes that would improve the Bill further. The key one is that relating to the definition of internet records and, as I asked the Home Secretary earlier, their deliverability. I genuinely do not have a great problem with the principle of defining an internet record or with the question of how we store it and eventually track individuals who have committed crimes or who could commit crimes in the future. The key point, however, is that we do not yet have a definition, nor do we have clarity on how the Government will fund and manage the storage of internet records.
I hope that the Bill Committee members will look at the written evidence received from Vodafone, TalkTalk and EE. They are very clear that they can use the budget set by the Government over 10 years to develop and manage the storage of internet records. We need a better, more effective way to deal with the issue.
I hope that there will not be a vote. If there is one, I will abstain—it is not my job to support the Government’s Bills through the Commons—but I really hope that the Bill will make it to the statute book in due course, after meeting the strong challenges set by my right hon. Friend and the cross-party Joint Committee. If that happens, the Bill will be used appropriately to stop paedophilia, organised crime and drug trafficking, to prevent terrorism, and to protect our citizens, which is the first duty of this House. That is what we should aim to do this evening.
Frankly, I struggled with the intricacies of RIPA and the other relevant legislation in my many years as a Government lawyer. I was, therefore, pleased and, indeed, excited to hear that previously almost impenetrable legislation was going to be consolidated into a new, easy to understand Bill, fit for the modern age.
When I read the draft Bill, I had concerns. I felt that greater judicial oversight was needed and that specialist groups, such as lawyers, journalists and, indeed, Members of this House, needed further protection. I read the Committee reports with interest and I was very much heartened to read the new Bill, which was produced following a large amount of scrutiny.
I feel that the double lock is a safe one. Assessing applications does and will undoubtedly take up a great deal of the Home Secretary’s time, but it is time well spent. It means that she is up to date with the details of real investigations in a way that few of her counterparts abroad can ever hope to be. It keeps her finger on the pulse. These are both political and judicial decisions; the fact that bulk warrants will come into force only once they have been authorised by the Secretary of State and approved by the Judicial Commissioner seems to be the very best of both worlds. Effectively, we are talking about judicial review with bells and whistles on, as Lord Judge informed the Committee, in every single case.
I was also pleased to read about the new protections afforded to those who provide information to sensitive persons—I hesitate to call lawyers and politicians sensitive, but perhaps those who provide us with information may be so described. The exemption is specially related to journalist sources.
I have been surprised by the openness of the Department in publishing the supporting material for this Bill. It is brave—I use that word as a long-term civil servant—of the Government to have published codes of practice complete with examples, and indeed the operational case for assessing internet connection records. It means that we can have a really informed debate today. I have presented cases where the security services, the police and the Ministry of Defence have analysed very large quantities of data. Although not very technically able myself, I did have to learn a certain amount about the search engines, which were designed to interrogate this material. I was reassured and, in turn, was able to reassure judges and Queen’s Bench Masters that the material on which important decisions were made was as complete as possible. The ability to collect bulk data is essential. The new Bill will help to ensure that there is no credibility gap in the balance between keeping us safe and protecting our rights to privacy. As important as pinpointing what information Government can obtain is deciding what can be done with it once it is gathered. This is where the important ethical debate should focus.
Last week the Justice Committee was fortunate to interview the President of the Citizens Crime Commission of New York City. He told us about new techniques to reduce crime by interrogating openly available material. Discussions now need to focus on whether we should interrogate social media to decide on a person’s propensity to commit crime or have drug addiction problems in the future.
I hope that the new IP commissioner will be a strong voice in the debates that lie ahead, and that he will be able to add a sensible and independent viewpoint to both the media and this House. Getting the balance right will always be a challenge, but I welcome the transparent approach of the Home Secretary and her team in presenting us with the Bill in its current form.
If we are to take the public with us on this important Bill, we need to be clear about what we want to achieve, and we need to be very precise in our language. We need a law enforcement framework that is fit for the 21st century, that matches technological advancement and that deals with the way that criminals have very effectively exploited technology. When we are tackling cases of terrorism or child abuse, we need to leave the public in no doubt as to whose side we are on. I want a law that is fit for purpose, is not outdated and is future-proofed as far as it can be.
I specifically want to talk about child abuse and the role that this legislation can play in trying to tackle online child abuse, which we have seen so much of in recent years. I also want to register my concerns about privacy. I know that the Committees that considered the draft legislation raised a number of issues, including privacy, the need to be very clear about privacy in the drafting, and the fact that some of the drafting is not as clear as it could be.
On child abuse, we know that, unfortunately, paedophiles have very quickly exploited the internet for disseminating and distributing child abuse images. We know that there are about 50,000 people in the UK who are accessing these abusive images each year. I am disappointed to say that, when the Child Exploitation and Online Protection Centre disappeared and was subsumed into the National Crime Agency, the number of paedophiles being identified and prosecuted in the UK started to fall, when we know that there is a rise in the number of people looking at these child abuse images. In fact, in Operation Notarise, it was found that between 20,000 and 30,000 suspects were looking at these images, but only 745 people were arrested. That is simply not good enough.
I was very disappointed to read a quote from the Minister for Policing, Fire, Criminal Justice and Victims, the right hon. Member for Hemel Hempstead (Mike Penning), who said, agreeing with what the head of the National Crime Agency had said:
“it is unrealistic to say that we will be able to go after, prosecute and convict in every single case”—
of child abuse. He said that the head of the NCA’s
“honesty was refreshing.”
Well, I do not think arresting less than 5% of suspected abusers is something that we should be proud of. As my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) said, if we can arrest 111,000 people suspected of drug offences a year, we should be able to arrest 25,000 people suspected of looking at child abuse images.
It is clear to me that part of the problem around why we are not making those arrests is the limitations in the legislation that we are working with. I want to see people such as Myles Bradbury, the doctor who was abusing his young patients, and Gareth Williams, the teacher who was abusing his pupils, brought to book far more quickly. We need an updated framework, we need to be able to identify offenders, and we need to update the warrant procedure and the investigation procedures. If we are to do that, the public need to be reassured that there is clear drafting. At the moment, it is easy to see what traditional surveillance looks like—tapping a telephone or following someone in the street—but it is much harder for the public to understand how we map surveillance on to online communications. We need clarity about the status of Twitter, Facebook and Instagram.
If we do all that, it should be possible to produce a workable system with all the necessary safeguards of privacy and fundamental liberties—a system that protects the innocent as much as it protects the vulnerable, and which only those from whom society needs protection need fear.
Like the right hon. Member for Delyn (Mr Hanson) and others in the Chamber, I had the privilege of serving on the Joint Committee. Against that background, I have no doubt that the Bill will help the security services and the police to keep our nation safe while preserving our civil liberties. That alone is reason enough for the Bill.
But the Bill serves another purpose—one that is just as important to our constituents as national security—and that is to help the police and law enforcement officers to catch the most dangerous and serious criminals. These powers will be used to stop the very worst of humanity—those who commit unspeakable acts against children, those who run their criminal networks in our streets with violence and fear, guns and knives, and those who seek to undermine our civil society by stealing from the state and from our families. This is the reality of the crimes our police officers have to investigate. The Bill will help to prevent crime, and to protect the victims of crime from people who mean us harm.
If I may, I will try to bring these powers to life in the Chamber. In my previous career I used to prosecute criminals, and I am very familiar with the law enforcement powers in the Bill because all of them, with the exception of ICRs, already exist and have been used for many years.
One example was a case involving an organised crime gang who, with the mafia, used to run the counterfeit cigarette market in the north of England. Over six months, that conspiracy involved the import of millions of dodgy cigarettes and the evasion of over £10 million in duty. The case relied on digital evidence to prove the involvement of 11 defendants. We used mobile phone records and cell site data to build a map of the six months, showing, for example, when defendants drove from the port to HQ to distribute the cigarettes to couriers and further afield. The map was so detailed that we could point to a single call and suggest to the jury that that was the call to the gang to say, “The load is here. Come and get it.” That is an example of communications data. It is used in 95% of organised crime cases and 100% of counter-terrorism cases.
There was another piece of compelling evidence that caused real difficulties for the leader of the gang, and that was a microphone in his car. When the tape was played to the jury, the conversations revealed plans, not to import cigarettes but to import drugs. Criminals diversify, just as legitimate businesses do. That is equipment interference. It is vital in the modern age and has been for some time, but this case was five years ago. I used it deliberately, because we now use our phones in a very different way and so do criminals. If that case were investigated now, a major part of the prosecution case—the communications between defendants—might well be a black hole because of the changes in the way that criminals communicate. How many paedophiles, gangsters, drug lords, gun runners and terrorists are to escape justice while some critics of this Bill—not here, I accept—try to divert our attention with misleading claims of a snoopers charter?
Finally, I end as I began, with the Joint Committee. This was a Committee of all parties and none—Conservative, Labour, Liberal Democrat, the SNP and Cross Benchers. It was unanimous in its support in principle for the Bill. I therefore have no hesitation in advising the Chamber that the Bill is necessary, proportionate and just.
I want to make it clear that I believe that our police and security services must have the necessary powers to protect us from terrorists and to disrupt, prevent and apprehend organised criminals, and that it is necessary to equip them with the proper legal powers to intercept communications and acquire information about the activities of those who would do us harm.
I am aware that in the west midlands there is a threat to our way of life. I was shocked to see figures from the National Police Chiefs Council which claimed that more than 400 children had been referred to a de-radicalisation programme over the past four years, and I am conscious of reports that the ringleader of the horrific Paris attacks, Abdelhamid Abaaoud, visited Birmingham just months before spearheading the carnage in Paris, so I do not underestimate the risks. Under normal conditions I would come to the House to defend the Government and support their aims, but if it were not for the seriousness of these matters, I query whether this deficient Bill deserves a Second Reading today.
I do not accept that in a liberal democratic society we can let any Government have carte blanche to instigate surveillance powers across whole communities of innocent people. Where we permit the extensive use of surveillance, it must be subject to the strictest scrutiny and controls; otherwise, what is our purpose? The Bill before us does not have anything like enough safeguards and it is drawn far too wide. Unless it is substantially modified, I would be doing a disservice to the people who elected me if I did not challenge it.
I agree with the Intelligence and Security Committee report that
“privacy protections should form the backbone of the draft legislation”.
It is an insult to the British people that the Government think that inserting the word “privacy” into the title of part 1 addresses such a fundamental concern. The Bill gives the Home Secretary powers to issue national security or technical capability notices requiring the recipients to take such steps as the Home Secretary considers necessary. This is, in effect, Parliament writing a blank cheque. Measures such as national security notices should be limited to emergencies. They should not be capable of being used on fishing expeditions.
On internet connection records, I agree with David Anderson that a “compelling operational case” should be made. As a result of the proposals in the Bill, the UK will be the only country in the world to have a policy of capturing and recording every citizen’s internet use. We will be the envy of states such as North Korea, China and Iran. The Government are planning to have a full record of an individual’s contact history, whether that individual is under suspicion or not. The idea that agencies will be allowed to combine information from a variety of sources—everything from our Nectar card to our library card and medical records—is intolerable.
We need substantial changes to this Bill so that the genuine powers that the police and security services need to protect us are available in legal form, and our civil liberties are recognised in law and cannot be misused.
It is a pleasure to follow the hon. Member for Birmingham, Selly Oak (Steve McCabe), although I disagree with his analysis and with what he says about the Bill being a blank cheque and about the provisions being ones that North Korea or China would welcome.
I also disagree with the many comments characterising the Bill as a snoopers charter, and I agree with my hon. Friend the Member for Louth and Horncastle (Victoria Atkins) and the shadow Home Secretary, the right hon. Member for Leigh (Andy Burnham), that it is an insult to those who work so hard to provide for our safety to characterise it in that way.
Some have accused the Government of bringing the Bill before the House too quickly; indeed, the hon. and learned Member for Edinburgh South West (Joanna Cherry) said it was a “rushed job”. Again, I disagree. There has been extensive prelegislative scrutiny of the Bill, and there will be further opportunity to scrutinise it during its later stages.
I will focus on one aspect: the authorisation under parts 2, 5, 6 and 7. On that, I agree with much of what my right hon. Friend the Member for North Shropshire (Mr Paterson) said. Essentially, the choice is whether authorisation should come from the Secretary of State, the judiciary or a combination of the two. One initial recommendation was that the Secretary of State’s authorisation should be replaced by judicial authorisation. That suggestion would replace a practice several centuries in the making, and I disagree with it.
It was said that judicial authorisation would improve public confidence in the system. I have great respect for the judiciary—as a lawyer, I have to say that, but it also happens to be true. However, I regret that it is thought that handing these powers from the Executive to the judiciary would improve public confidence, and I regret that this place and politicians are held in such low esteem. My firm view is that we should not pass the buck just because these decisions are difficult and may be unpopular, for that would risk making politicians yet more unpopular.
It has been said that Ministers are not accountable, but I disagree: they are accountable to Parliament, Select Committees and the electorate. That contrasts with judges, who, however well respected—and, of course, they are—are not elected and not accountable. This decision is an Executive decision, and as such it should certainly involve the Secretary of State. If the proposal had been that the judiciary alone would make these decisions, I would be rising to speak against the Bill. As it is, the double lock—authorisation from the Secretary of State, but with a check from the judiciary—means that I can support the proposals.
As always, my hon. Friend makes an insightful point, and I am grateful for his intervention. As drafted, however, the double lock is a sensible compromise, which perhaps strikes the right balance. In the broader context of the Bill, and as set out, the test in the Bill is just, necessary and proportionate, and I will be supporting it this evening.
It is an honour to follow the hon. Member for Mid Dorset and North Poole (Michael Tomlinson). While we as a party share some of the misgivings that have been raised in this debate, we would be supportive of this Bill receiving its Second Reading.
As the elected representative for Belfast East, I cannot, in all good conscience, stand here and have an abstract discussion about the threat of terrorism. Terrorism hit home in my constituency a week ago last Friday, and sadly the tragic consequences materialised today. When Adrian Ismay left his home a week ago last Friday, he did so as a diligent and dedicated public servant. He was on his way to his place of work as a prison officer. He had served the Northern Ireland Prison Service for 28 years. He worked in Hydebank young offenders centre. He emulated all that is good about our society in Northern Ireland, and his service was dedicated to bringing our society together, but that is a long way from the motives of those who planted a booby-trap bomb under his car. The esteem in which he was held in Hydebank is best described by the inmates he had direct contact with, who issued a condemnation of and expressed their abject horror at the atrocity that was brought to his home and to his car last Friday.
The right hon. Member for North Shropshire (Mr Paterson) raised a number of serious concerns that we share about the implications when we tackle terrorism head-on in Northern Ireland. I share those concerns, and as a representative of my party on home affairs and justice, I wrote to the Joint Committee on a confidential basis to raise some of them.
An individual was mentioned earlier—Colin Duffy. Colin Duffy is a monster. Colin Duffy has terrorised society in Northern Ireland for over three decades. He was convicted of murdering a UDR soldier in Northern Ireland—a conviction that was subsequently quashed. He was arrested and charged with the offence that took place when two serving members of the armed forces—two sappers—in Massereene barracks had pizza the night before they went off on a tour of duty. He was arrested for the murder of two serving police officers in Northern Ireland, but was subsequently released. When he was arrested less than a year ago for directing terrorism under the banner of the New IRA—an organisation with no ideology but blood thirst and the wish to destroy society in Northern Ireland—he was released because the judge was prepared to order the security services to reveal the nature of the way in which he was brought before the courts. He still walks our streets today, but Mr Ismay does not.
I support this Government today, as I will always support this Government when they stand against terrorism. If we can do anything, it is to have a rational, sensible discussion. That is not to suggest that these threats are abstract or that people are not dying on our streets in the United Kingdom today—hopefully not—but that the threat remains for the months and the years to come. We must be resolute in this House in recognising the dangers not only in London and Great Britain but in Northern Ireland. If we can do anything to honour the memory of Adrian Ismay, it is to make sure that this Government, and our security services, are equipped with all the powers they need to bring people like Colin Duffy and his cohorts to justice.
There is nothing more important than the safety of our country and the people who reside in it. I believe that the Bill before us today is an important step forward with regard to securing a clear framework to further enable our security and intelligence agencies to do just that. I welcome the introduction of the Bill and its allowing us to have this debate. I am pleased that the draft Bill was scrutinised by Committees of this House, with the Government making safeguards clearer and stronger.
It remains important that the agencies tasked with protecting us are able to do so in the developing digital world. I understand why some would express concerns over data collection and how those data would be used, and it is right that those questions are asked and explored. However, in today’s digital world, now more than ever, our children are vulnerable to criminals, who target and exploit them by digital means. It has been reported that, in 2012, 50,000 members of the British public accessed indecent images of children over the internet. Only last year in my constituency, we saw a head teacher sent to jail for accessing images of that kind.
Protecting our children and bringing the people who abuse them to justice is of paramount importance to me. I have seen at first hand the lifelong damage caused to children who have been abused and exploited. If the Bill enables our police forces to detect and stop abusers, that is enough for me. Last week, I was part of a panel that heard evidence in relation to the Barnardo’s inquiry into harmful sexual behaviour. We heard evidence from the National Police Chiefs Council lead for child protection and child abuse investigations, who informed us that there were 70,000 allegations of abuse in 2015, an 80% increase on 2012. More worryingly, on the current trajectory, allegations would rise to 200,000 by 2020.
Ultimately, the chief constable said that the Investigatory Powers Bill would give the police essential powers to combat internet grooming and the dissemination of indecent images of children. That is made more important by the fact that only a very small number of cases—one in eight—are reported by victims. It is therefore crucial that more is done to arm authorities to identify more abuse and bring more offenders to justice. For example, of more than 600 criminals covered by an interception warrant, over 300 were accessing online communications services. The powers in the Bill would mean 300 trackable communications, leading to 300 paedophiles being prosecuted.
It is clear to me that the direction and focus provided by the Bill can only bring positive results when it comes to preventing online child abuse. Last week, the Barnardo’s inquiry also informed me that many child abuse offenders are not using the most sophisticated methods to search and share illicit material, or to conduct internet grooming. A large percentage of such offenders use social media and messenger services, and many use chatrooms. The Bill will require service providers to record those communications when a notice is served. That will make the job of prosecuting abusers that much easier, because it will not involve going through the current request process.
Because of the rise in mobile and internet technologies that were unavailable 15 years ago, it is a sad fact that one of the biggest challenges before us today is that the abuse of children is increasing. We need to allow our police forces to utilise the powers outlined in the Bill if we are to keep our children safe from sexual abuse. That is why I encourage the House to join me in supporting the Bill today.
As Members have heard, on the three main aims of the Bill, the SNP agrees with the Government. Laudable as those aims are, however, they are certainly not always in concert with the effects of the Bill. In the words of the Internet Services Providers Association, ISPA—not to be confused with the Independent Parliamentary Standards Authority, IPSA—
“there is a disconnect between what can be found on the face of the Bill and what the Government says the Bill will be used for. Given that the Bill is highly intrusive, the Government must put all of its intentions for how it plans to use the powers on to the face of the Bill. Reliance on speeches and…documents, such as codes of practice, to make clear what the Bill explicitly intends is unsatisfactory.”
The SNP and I have a number of other concerns, as my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) so eloquently laid out. As the SNP’s civil liberties spokesperson, I have received a large volume of emails on the matter. I want to focus on the concerns most frequently raised with me by civil liberties campaigners and my constituents. Time is very tight, so I have to chop my speech to pieces. I will try to be specific and to speak even more quickly than I am doing now.
One concern is that the Bill legalises practices that have been introduced without any parliamentary scrutiny, and it uses the fact that they are already happening as some kind of justification for their efficacy, legality or morality. We should be wary of legitimising steps taken by state agencies without our knowledge or consent, before we have had a full debate on whether we consent to those powers. I refer, of course, to the bulk powers in the Bill. It is not good enough to say, “We have not had any major disasters so far.” That is the cowboy builder’s approach to our liberties. It is equivalent to saying, “Keep your fingers crossed and hope that the roof does not cave in,” and it is not good enough.
Like many civil liberties campaigners, I appreciate the fact that targeted interception with appropriate oversight plays a vital role in keeping our constituents safe. Nobody has a monopoly on that—we all want to be safe, and we all want to feel safe—but the key issue is targeting. The majority of the case studies that were provided, and experience of terrorist attacks elsewhere, show that, by and large, individuals involved in such attacks attract attention from the authorities in advance of the attacks.
I am speaking as fast as I can; I cannot possibly give way. I am very sorry.
Such leads must be followed up in a targeted manner, and we must protect our much valued civil liberties and the freedoms for which, so we are told, Britain is famed.
I find it disturbing and somewhat frightening that the Home Secretary has refused to accept the recommendation, by one of the three parliamentary Committees that have detailed their concerns, to exclude from the Bill the use of surveillance powers for the economic wellbeing of the UK. From the passion and determination with which British politicians of all hues fought to keep Scotland in the UK, and if we accept, as I do, that they did so not just for Scotland’s own good, it is clear that they believed that our independence would have an adverse impact on the UK economy. Notwithstanding the fact that I do not necessarily agree with that premise, I am interested to know whether all independence campaigners are vulnerable under this legislation.
As Members may have heard, the First Minister of Scotland has recently announced a new initiative, starting this summer, to argue for independence, so it is best that we know.
Campaigners have rightly been somewhat alarmed to read clause 1(3), in which the Government tell us that some of the protections enjoyed by citizens of the UK—indeed, the only protections explicitly named in the Bill—exist
“by virtue of the Human Rights Act 1998”.
The Government are not only pushing the Bill through hastily and to a tight timetable, but asking us to accept protections in a piece of legislation that they are doing their utmost to scrap. We want a Bill that we can fully support. For us, we do not yet have such a Bill.
My thoughts on this legislation can best be summed up in three ways: first, it is about time; secondly, it is very much a Bill of our time; and thirdly, I of course wish it was not needed at all. The measures contained in the Bill should have been on the statute book in the previous Parliament, of which I was a Member, but history records why they were not.
I say it is a Bill of our time. Sadly, the bad guys have always wanted to do us harm. In the internet age, it of course gets harder to deal with them—it requires us as a society to ask ourselves even tougher questions about the compromises required—but that does not mean we can bury our heads in the sand. Whether or not this Parliament acts, the world will continue to be a dangerous place and our many enemies will continue to use the very latest technology to try to get at us. We cannot stop the world because we want to get off.
It seems to me that the opponents of the Bill break in one of two ways, or perhaps both—that we have rushed to get to this point, and that insufficient safeguards are in place for the powers granted. As a youngish researcher, I worked on the Regulation of Investigatory Powers Bill 16 years ago. I remember the claims that it was rushed, was not needed and, above all, would usher in some Orwellian nightmare. I did not believe that then, and I do not believe it now. The intention to bring forward this legislation was set out clearly in our successful manifesto last year.
My hon. Friend makes the very important point that this legislation was in our manifesto. Given the slightly academic approach to law enforcement taken by our friends in the other place, does he share my hope that, because the Bill is a manifesto commitment, they will not seek to hold it up, given its urgency?
I think the other place will enjoy being described as taking an academic approach. Yes, this very clear security measure was in our manifesto, and I think that message will clearly go along the corridor.
As the Home Secretary said, the Bill follows no fewer than three reports, published last year, which concluded that the law in this area was not fit for purpose and needed reform. We have heard much about the Anderson report today. We have had the ISC report and we have heard from its Chairman, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). We have also had the RUSI independent surveillance review. Further to all that, the draft Bill was subject to pre-legislative scrutiny by three parliamentary Committees, which made some 86 recommendations about how it might be improved.
As we have heard, the Government have accepted many of the recommendations. There has also been a general election. I know that the Minister for Security and his team have done a huge body of work in bringing the proposals—Bill-ready, as they now are—before the House today, so I think it is some stretch to say that the measures have been rushed before us. Furthermore, I think our constituents should be reassured that, after all of that, we have a better Bill. It has been stress-tested by all the work I have mentioned, and we have the lengthy process of parliamentary scrutiny ahead of us.
The Government say that the only new capability provided for in the Bill is the ability to require retention of internet connection records. That is certainly the area that has most caught the media’s attention. Oversight for the operation of the surveillance powers in the Bill is also reformed compared with the legislation—RIPA—that it supersedes. The new double lock means that, for the first time, the commissioners will bring an element of judicial oversight to the process of issuing warrants. I am happy with that, but I want to hear more from the Government about the practicalities of those oversight arrangements, and to be sure that the judicial commissioner will not merely look at the decision-making process that a Minister has gone through, thereby undermining the significance of the authorisation procedure.
I have no issue with Britain’s spy agencies and those parts of the police that investigate serious crime having these powers. I think that they have earned the right to be trusted, and I take the Home Secretary at her word when she says that they have foiled serious terrorist plots in the UK since November 2014. I do, however, have concerns that these powers will end up also being used for trivial purposes by those in our town halls and local constabularies who may think that they are in an episode of “Spooks”. I know that that is not the intention of the Bill, which seeks to keep us safe and equip the spooks to do their job in the 21st century—as I am sure the Minister will reiterate when he winds up the debate—but I do not want this Bill to become its own public relations disaster due to a mission creep that was never intended in its drafting.
Time is short, so in conclusion, there will always be strong emotions about a Bill such as this. Some will believe that we are presiding over an increasingly all-seeing state that reaches into our lives too much, and others will think that these measures do not go far enough. Many of our constituents will take the view that, if someone has nothing to hide, they have nothing to fear, and I have some sympathy with that. The truth is probably somewhere in between. As I said at the start of my remarks, I wish that a Bill such as this were not necessary, but it is, and a wealth of evidence suggests that the law in this area needs urgent revision. The bottom line is that we as a society give something away in return for our freedom, safety and security. That is a choice we make as an elected House of Commons and as elected representatives. There is always a compromise between liberty and security. It is unhelpful to present this issue as being all one way or all the other way. On balance, having looked at the evidence, read the Bill and talked to Ministers, I think that it contains the right combination of measures, and I will support it tonight.
I pay tribute to my colleagues in the Joint Committee who have scrutinised this Bill for their sterling work, and I particularly thank our Chair, Lord Murphy, and the Clerks and experts who did such a fantastic job in supporting us. Most importantly, I thank those who provided written and oral evidence to the Committee, including all those who work so hard to protect us from terrorism and serious crime. They made our understanding of these issues much clearer, even if resolving them remains incredibly difficult.
The issues are many and varied. A number of hon. Members have focused on the right balance between security and privacy, which is fundamental to the Bill, but there are also other issues. By attempting to plug one gap in security, do we create a different problem elsewhere? That issue arises in relation to hacking and encryption. Why should we put future-proofing ahead of clearly defined powers and responsibilities? What precedent does the Bill set for other countries? There are also more practical questions, such as whether everything the Bill proposes can be done—that issue arises for internet connection records. We must assess the implications of the Bill for important freedoms and protections, including its effect on journalism, and its influence on relationships between lawyers and clients, and between whistleblowers, constituents and their MPs. What are the implications for UK tech businesses?
Despite those questions, there is undoubtedly need for legislation—no one in the House is denying that—because, as various reports have pointed out, the existing scattered miscellany of provisions across various obscure statutes undermines the rule of law. We must also remember that we are here in part thanks to Edward Snowden’s revelations, and the breakdown in trust that followed between the public and business on one hand, and intelligence agencies and law enforcement on the other. As we know, MPs—never mind the public—had no idea of extent of the capabilities that services and agencies were using.
Does the hon. Gentleman accept that public trust is undermined when laws that are designed for serious crimes are used for minor crimes and things such as antisocial behaviour? Does he agree with the shadow Home Secretary, who called for a proportionality clause to be included in the Bill to ensure that that does not happen in practice?
I have severe difficulties with some of the provisions on internet connection records in the Bill. There are tests of proportionality in the Bill, but the shadow Home Secretary was proposing a different threshold for the types of crime for which we could use internet connect records, and we will consider that proposal with an open mind.
The context informs the tests and standards we need to apply to the Bill, so we can restore the trust the hon. Gentleman talks about. First, the Bill must comply with and support the rule of law by clearly defining the investigatory powers that public institutions have available, and the limits and safeguards that apply. Of course, it must itself be consistent with the law, including international human rights law and the right to privacy.
Secondly, there must be strong oversight of the use of these invasive powers and a body that can independently scrutinise the work of the organisations using them. Going further, that body must also have the powers and expertise necessary for ensuring that the powers are not being exceeded or abused. The ability to look under the bonnet, as some of the witnesses to our Committee described it, and see what is really going on is the only way we can avoid another Snowden incident in future.
Thirdly, there is a need for the Government to shoulder responsibility for justifying each and every one of the invasive powers sought and avowed. Parliament should not give an inch without being properly persuaded of their absolute necessity. This is the first time Parliament has debated many of them. Some, as has been said, go further than our European neighbours or even our “Five Eyes” colleagues.
In the time available, I will focus on the second of those areas of concern, the oversight and limits on powers. The introduction of judicial oversight is, to my mind, very welcome. I do not want to re-tread the debate about whether judicial review is the appropriate standard. The minutes of the Joint Committee will record that I voted to remove that test so that a general merits test was instead what was applied. My view, for what it is worth, is that if we are going for a double lock, it should be a proper double lock with two proper bolts of equal strength. The Bill Committee will form its own view on that.
I welcome the fact that the Government have made some attempt to respond to recommendations, strengthening the oversight role of judicial commissioners through the use of an in-house legal adviser, appointment of counsel and access to technical expertise, and through their ability to communicate with the tribunal directly, and to hear from whistleblowers. However, other recommendations have been rejected, including significant proposals to make the tribunal more transparent, broader rights of appeal and public hearings. The Bill Committee will want to push further on issues such as the appointments process and the process for agreeing the commission’s budget.
Very significant question marks still remain with regard to legal privilege and the protection of journalistic sources. Much more scrutiny work is required in this area. I also remain utterly dissatisfied with the Government’s response to one important criticism of the ability to significantly modify warrants without judicial oversight, something that risks running a coach and horses through judicial protections. I accept the principle of the Bill, but there is still a lot of work to be done to persuade me to vote for it.
The primary duty of any Government is the security of its people. Above all, we need to ensure that those tasked with keeping us safe have the powers to do so. I congratulate the Secretary of State for listening to concerns about the draft Bill and taking steps to improve it before bringing it to Parliament. It is a better Bill than before. However, I am afraid I still have some concerns that prevent me from wholeheartedly supporting it.
First, everyone in this House wants the police and security services to have the necessary powers to intercept communications data, but the Bill goes further than that. It extends those powers to public and local authorities. Clause 64 states that a designated senior officer may grant an authorisation for obtaining telephone data to detect or prevent crime and disorder. A designated senior officer is defined as anyone at a local council with the
“position of director, head of service or service manager”.
I would suggest that there are no circumstances under which the head of waste services at my local council should be able to authorise an application for telephone data to prevent crime or disorder.
The Bill should not give councils these powers in the first place. We have seen what happens when we extend these sorts of powers to local councils: they abuse them. We all remember examples of local authorities using terrorism legislation to rummage through residents’ bins or to spy on local paperboys. If local councils need to investigate crimes and require telephone data, my response is simple: go and speak to the police. These are very serious powers, which is why I urge Ministers to restrict them to the police and the security services.
Local authorities will not have the powers to deal with internet connection records. Indeed, the powers of local authorities are very much restricted, following the very legitimate concerns voiced several years ago about exactly the things my hon. Friend describes.
I take my hon. Friend’s point about internet data, but local authorities will have the powers in relation to telecommunication data. That is still very much in the Bill.
My second concern is around the modification of warrants. Clause 30 allows the Secretary of State to add, remove or change the names of people, organisations or premises to a warrant already issued. We are told this is for situations where the same target uses different names—in other words, the use of aliases. For example, the same individual may be known as Mr Smith with O2 and Mr Clark with Vodafone. That must be made clear in the Bill. These modifications should apply only to adding, removing or altering aliases of existing targets on warrants; the Bill should not permit changing names to investigate a completely different person.
My third and final problem concerns situations where a judicial commissioner refuses an urgent modification. The Bill says that where a commissioner refuses an urgent warrant, they can require that the information collected through that warrant be destroyed or restrict how it is used, but it does not make clear the commissioner’s powers when they refuse an urgent modification of a warrant. When the commissioner refuses urgent modifications to a warrant, I would like the Bill to allow them to require that any material obtained under the modified provisions of the warrant be destroyed or that restrictions be put on its use. In some instances, judicial commissioners are not required to review or approve modifications made to warrants at all. The Government should agree that all modifications require the approval of a judicial commissioner.
Despite those concerns, I will vote with the Government today. In order that we be kept safe, we need a Bill that confirms the powers of our police and security services, but we have only one chance to get the Bill right, so I hope that amendments can be made on Report.
In the four hours during which I have been fortunate to listen to this debate, I have observed common purpose on two things: first, our existing, piecemeal framework of legislation around regulatory powers is outdated and not fit for purpose; and secondly, there is a widely accepted view across the House that we must do something about the changing nature of crime and the risk of terror. We, as Members of Parliament, particularly those of us who are not lawyers, must consider whether the Bill makes our constituents safer and strikes the right balance between security and civil liberties. The need for this revised Bill is obvious, so I will be delighted to support the Government this evening.
I want to raise an issue I have spoken about in the Chamber a number of times before. Investigatory powers are clearly essential in the fight against terrorism and, as many have said, paedophilia, but they are also essential in the fight against economic cybercrime, which is what I want to touch on now. Overall, crime in the UK has been falling, but behind that has been an ever-increasing threat from cybercrime. Some 12% of European internet users have had their social media, email or payment systems hacked, and 7% have been victims of credit card or banking fraud online. Recently, we have seen sensitive data stolen from companies and the targeting of private payment systems and financial institutions’ websites. Often, these are denial-of-service attacks.
The Opposition need to rethink their comments about economic wellbeing. My hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) was right in her intervention on the shadow Home Secretary. Interference in a banking system might cause difficulties for one or many of our constituents, and although it might not be as directly injurious to them as a bomb, surely a threat to our banking system and people’s personal financial security is a threat to them and more generally to our national security.
I think the Government have got the balance right in clause 18(2)(c) and 18(4). It is essential to consider economic wellbeing as a matter of national security. Moreover, like others, I am a student of the country’s infrastructure systems. Far too many people will not think that a small or large-scale attack on power or communications networks carries the same disruption or national security implications as a bomb and the appalling injury it could do, but the potential ramifications of such an attack are as injurious to our national security. I therefore think that the Government have got the balance right.
I say to one or two of the Bill’s opponents, particularly those concerned about bulk data collection powers, that I hope they share my contention that economic well-being is wrapped up with national security. The bulk powers have been exactly those that have been used by the security services in the last six months to identify 95% of the cyber-attacks on people and businesses. That shows why these bulk powers are necessary. I hope that all Members will support the Government and the Bill.
Today we debate what is possibly one of the most important pieces of legislation this Session—or possibly even this Parliament. I rise as a non-lawyer amid what could be described as a “brief” or even a “fee” of lawyers, so I shall seek to focus on the broader issues. This Bill goes to the heart of our duty to protect the security of our country and our constituents. A delicate balance is always to be struck between security and individual privacy and liberty. The Bill serves to protect the security of this country in the face of a changing scale and type of threat—both terrorist and criminal.
Does my hon. Friend agree with the evidence we heard from the National Society for the Prevention of Cruelty to Children in Committee showing that the Bill is important for tackling online child abuse and for tracking children who have gone missing and are at serious risk of harm?
My hon. Friend is absolutely right, and that is exactly the sort of criminality that the Bill will make it easier for the forces of law and order to tackle.
The Bill also serves in tandem to protect the privacy of the individual. That threat, domestic or foreign, seeks to find a safe place in which to operate in the darker recesses of the internet, using modern communications technology to escape justice. My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) rightly said that the legislation he took through Parliament as a Minister in the past did not provide for these sort of powers. He is right, but the problem is that the nature of the threat and the technology used have moved on significantly since then. Our duty is to ensure that our security forces, whose often silent toils to keep us safe we should all respect and pay tribute to, have the powers they need to keep up with that change and the reality of the modern world and to pursue those who wish us harm wherever they seek to hide—on the web, or outside it.
As my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), a distinguished lawyer, has said, many powers in the Bill already exist in other legislation, and the additional powers provided by this legislation such as for ICRs and greater bulk collection of data are, I believe, appropriate and reasonable, and they come connected with strong safeguards.
This Bill strengthens the protections for citizens and privacy and overhauls the complex, even byzantine, existing regime governing investigatory powers, modernising and clarifying that framework. Importantly, it includes provision for judicial involvement alongside the Home Secretary’s authorisations. I personally have great faith in this Home Secretary and in her judgment as well as her accountability to this House. However, the double lock of judicial involvement provides an important compromise and further reassurance for those who genuinely and sincerely have expressed concerns.
Taken as a whole, what is set out in this Bill will provide for one of the most transparent and rigorous sets of safeguards and oversight regimes in the world. I believe it is the right approach, but I also set great store by what my right hon. Friend the Member for North Shropshire (Mr Paterson), a former distinguished Northern Ireland Secretary with first-hand experience, has said; I hope that the Minister will be able to offer some reassurance on the points my right hon. Friend raised and confirm that the envisaged system will still be sufficiently operationally agile.
I agree with the shadow Home Secretary, whom I have always regarded as a thoughtful and decent man, that finding the right balance between security and privacy is the key and that that balance is never an easy one to strike, which makes it absolutely right for this House to scrutinise what is proposed by using its fullest powers. I believe that the pre-legislative scrutiny and the scrutiny process through which we are taking the Bill through the House are absolutely fit for purpose in doing so. I am afraid that I cannot agree with the shadow Home Secretary’s conclusions. I am convinced that the Bill strikes the right balance between security and privacy and that what is proposed is right, necessary, proportionate and will help to ensure that those who keep us safe have all the tools they need to do that in this modern age.
I know that there are strong feelings about the Bill on both sides of the House, but for me, it pits two fundamental issues against each other: privacy and security. Although the United Kingdom has no constitution, it is the leading light in laying down the main principles of democracy: such fundamental principles as “innocent until proved guilty”, trial by jury, freedom of expression, freedom of speech, and the right to privacy. Meanwhile, we have some of the best and most sophisticated intelligence agencies, which keep us safe and work around the clock with our world partners to tackle global crime and terrorism.
Along with their responsibility for maintaining our fundamental democratic rights, the Government have a responsibility to keep their citizens safe. Over time, the principles by which we live have evolved. In 1967, for instance, the House rightly passed the Sexual Offences Act, which decriminalised homosexuality and allowed thousands of people openly to express their love for others of the same gender. Likewise, in recent years we have seen a revolution in technology and the ability to communicate by many means: by telephone, letter, email or text message, and through the use of mobile phones, tablets, radios, computers, cameras, or pen and paper.
Even decades ago, when members of the public did not have computers or mobile phones, the right to privacy was under scrutiny as security agencies tapped telephone lines and secretly opened mail. For years the police have been able to look at people’s phone records. Just as that new form of technology had to be monitored so that criminals and terrorists could be caught, today’s emerging technologies, including encryption, should be monitored effectively. To those who oppose the extension of these powers from telephones to the internet, I say this: why should the internet be the one part of people’s lives that is off limits to surveillance? The security services must have the same ability to catch criminals and terrorists—through modern forms of communication —as they did 50 years ago.
Over the decades, we have seen a degree of balance, but in the background we have always had a Government who wish to keep us safe, and who use highly trained people and advanced technologies to identify threats in order to protect the freedoms by which we live. As the present Government address the increasing threat that we face, it is imperative that we continue to afford our citizens the same level of privacy and freedom that they have always had, and for the sake of which millions have people have put their lives on the line. I am therefore very pleased that the Government worked so constructively with campaign groups when drawing up the Bill.
In 2015, three reports concluded that the law was unfit for purpose. First, the Anderson report recommended that judges authorise communication intercept requests, and also recommended the creation of an intelligence commissioner. Secondly, the Intelligence and Security Committee’s report concluded that the legal framework within existing laws had developed “piecemeal” and was “unnecessarily complicated”. Its key recommendation was for a new Act of Parliament that would strengthen privacy protections and improve transparency. Thirdly, the report of the independent surveillance review by the Royal United Services Institute also concluded that new legislation was needed, and that warrants relating to national security that were signed by Secretaries of State should be subject to judicial review.
The Bill addresses the recommendations and concerns contained in those three reports. It keeps the principles of our democracy at the heart of its mission to stop criminals, terrorists, child traffickers and abusers, and, ultimately, to save lives. That is why I shall support it this evening.