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Anderson Report

Volume 762: debated on Thursday 11 June 2015


My Lords, with the leave of the House, I will repeat a Statement given in another place this morning by my right honourable friend the Home Secretary.

“Mr Speaker, with permission, I would like to make a Statement on the publication of the Anderson Report and the parliamentary consideration of investigatory powers.

As the House will know, it is the Government’s intention to bring forward legislation relating to the security, intelligence and law enforcement agencies’ use of investigatory powers and to have that legislation enacted before the sunset provision in the Data Retention and Investigatory Powers Act 2014 takes effect on 31 December 2016.

In 2014, the Government asked the Independent Reviewer of Terrorism Legislation, David Anderson QC, to conduct a review of the operation and regulation of law enforcement and agency investigatory powers, with specific reference to the interception of communications and the separate issue of communications data.

David Anderson has completed that review and this morning my right honourable friend the Prime Minister made a Written Ministerial Statement to lay that report before the House. The report makes 124 recommendations, covering sensitive intelligence capabilities, and it extends to over 300 pages. Following careful consideration by the Government and the security and intelligence agencies, I can confirm that no redactions have been made to the report prior to publication. I would like to put on record my and the Government’s thanks to David Anderson for his thoroughness and dedication in undertaking this important work.

As the report highlights, there is a range of threats against the UK and its interests, from terrorism, both at home and overseas, to cyberattacks from criminals. Many groups, not just the Government, have a role to play in ensuring the right capabilities are in place to tackle those threats. We will continue to work closely with all partners, including the intelligence agencies, law enforcement and industry, to take all these issues forward and to continue to keep us safe from those who would do us harm.

David Anderson’s report is complemented by two further independent reviews in this area. In March, the Intelligence and Security Committee published its privacy and security report. This set out a comprehensive review of the intelligence agencies’ capabilities and the legal and privacy frameworks that govern their use. Later this summer, a panel co-ordinated by the Royal United Services Institute, and established by the former Deputy Prime Minister, the right honourable Member for Sheffield Hallam, will report on the legality, effectiveness and privacy implications of the UK’s surveillance programmes, and assess how law enforcement and intelligence capability can be maintained in the face of technological change.

These independent reviews are each important and valuable contributions to the continuing debate about the role of our security, intelligence and law enforcement agencies, their use of investigatory powers and their oversight. The Government will need to give proper consideration to their recommendations, but collectively I believe they provide a firm basis for consultation on legislation.

I now turn to the parliamentary handling of this legislation. The operation and regulation of the investigatory powers used by the police and the intelligence and security agencies is a matter of great importance to the security of this country and I know an issue of great interest to many Members of this House. As David Anderson makes clear, it is imperative that the use of sensitive powers are all overseen and fully declared under arrangements set by Parliament. It is therefore entirely right that Parliament should have the opportunity to debate these matters in full.

The Anderson review was undertaken with cross-party support and I believe it provides a sound basis to take this issue forward in the same manner. In order to ensure that this is the case, the Government will publish a draft Bill in the autumn for pre-legislative scrutiny by a Joint Committee of Parliament, with the intention of introducing a Bill early in the new year. Given the sunset clause in the Data Retention and Investigatory Powers Act 2014, the new legislation will need to be in place by the end of December 2016.

I have said many times before that it is not possible to debate the balance between privacy and security—including the rights and wrongs of intrusive powers and the oversight arrangements that govern them—without also considering the threats that we face as a country. Those threats remain considerable, and they are evolving. They include not just terrorism—from overseas and home-grown in the UK—but also industrial, military and state espionage. They include not just organised criminality, but the proliferation of once-physical crimes online, such as child sexual exploitation, and the technological challenges that brings. In the face of such threats, we have a duty to ensure that the agencies whose job it is to keep us safe have the powers they need to do the job.

I finish by paying tribute to the vital work of the men and women of the intelligence and law enforcement community, whose work is not always known, whose successes often go unrecognised, and whose efforts day in and day out are fundamental to keeping everyone in this country safe”.

That concludes the Statement.

I thank the Minister for repeating the Statement made earlier in the other place. I certainly endorse the comments that he made at the end about the work of those in the intelligence and law enforcement community, who are there to protect us and whose successes, as he said, often go unrecognised.

We welcome the report by David Anderson QC, the Independent Reviewer of Terrorism Legislation, into the operation and regulation of law enforcement and agency investigatory powers. It is a report which the shadow Home Secretary called for when emergency legislation was being debated last summer, since we believe that the current legislative framework is no longer fit for purpose. While technology has moved on, the same cannot be said for either the law or the oversight arrangements. Reforms are needed, and we need to get them right in order to protect both our liberty and our security when addressing the threats we face.

In media broadcasts the independent reviewer has given today, he said that there are two problems with the law in this area as it stands. The first is that no one can understand it since it is spread over 64 Acts of Parliament, which have also proved variable in their application. The second is that there is a need for stronger safeguards and protections. For example, instead of it being the Home Secretary who decides whether you can tap the telephone of a suspected drug dealer or terrorist, it should be for a judge to do so, in order that it can be seen to be done in a proper and independent fashion. It seems that last year the Home Secretary authorised some 2,345 warrants. According to the report of one interview David Anderson has given, the Home Secretary has, in his view, effectively been doing this in her spare time when not running the department. Whether the Home Secretary shares the concerns of the independent reviewer about the workload imposed on her by having to decide whether to authorise all these warrants is no doubt something on which the Minister will be able to enlighten us, but I have a feeling that Mr Anderson thinks that warrants should be authorised by a judge—full stop—rather than having concerns over the workload it involves for either this Home Secretary or indeed any other Home Secretary.

Proportionate surveillance and interception saves lives and averts and disrupts terror attacks and other major crimes. There is no doubt that these powers are needed and we cannot allow the sunset clause on the existing powers to lapse at the end of next year without having new legislation in place. However, strong powers need strong checks and balances, including effective oversight of the way the system works. Public acceptance of the need for such powers will be diminished if there is a belief that they are being abused for purposes that impinge on our privacy, and for which they were neither intended, nor for which authorisation for their use has been given.

We have to ensure that we put arrangements in place to address the concerns that personal privacy can be invaded without justification and proper prior authorisation. We welcome the proposals in the independent reviewer’s report to strengthen oversight that involve a new and stronger independent surveillance and intelligence commission, merging the existing system of commissioner, and of course introducing judicial authorisation of warrants. Do the Government also welcome these proposals?

The independent reviewer has also concluded that there should be no question of progressing proposals for the compulsory retention of third-party data before a compelling operational case for it has been made out, which he says it has not been to date. Is that recommendation in line with the thinking of the Home Secretary? We welcome the Government’s decision that a draft investigatory powers Bill—presumably based on David Anderson’s report, although perhaps the Minister can confirm that that will be the case—will be subject to pre-legislative scrutiny by a Joint Committee of both Houses. I hope that the Government will also provide time for a full debate on the Anderson report in this House so that all Members have the opportunity to contribute. I hope also that the Government will seek to promote this among the public at large as well, to help ensure that there is the widest possible consent and thus legitimacy for the new framework. Will the Government provide for such a debate?

The digital age is a source of freedom and opportunity but, as we have seen, it brings new challenges from new crimes and new threats to our security that are extensive and go well beyond the horrors of terrorism. We have to ensure that those whose responsibility it is to protect us and keep us safe have the necessary powers to do the job in the changing technological environment in which we live today, while ensuring that those powers are used only for the purposes authorised and intended, and not at the expense of the liberty and privacy of the public at large. We welcome the report by David Anderson, which will help us to do this and ensure that in the key areas of security, privacy and countering the many different threats we face, our very different digital age from that we have known in the past actually serves the interests of the public and our democracy rather than proves to be our master.

My Lords, I thank the Minister for repeating the Statement. As he just said, this is one of a suite of reports commissioned by the previous coalition Government into investigatory powers; it is a very important one by the Independent Reviewer of Terrorism Legislation.

On first reading, it appears to be a fair and balanced report. While some may have preferred there to be no state intrusion into people’s privacy, we on these Benches understand that there needs to be a balance between the powers given to the police and to the security services, and the right to privacy and the upholding of individuals’ civil liberties. It is for the police and the security services to argue for more powers, for civil libertarians to argue for fewer, and for us as politicians objectively to decide where the balance properly lies.

The Home Secretary, in her Statement, lists a whole range of potential threats, concluding that,

“we have a duty to ensure that the agencies whose job it is to keep us safe have the powers they need to do the job”.

As a consequence of what the right honourable Member said in the other place, I am concerned that the Government are already biased in favour of the state and against the individual. Thankfully, David Anderson is having none of it and neither should we. Along with consideration of the threats that we face as a country, will the Government consider a digital Bill of Rights to give citizens a clear and unambiguous understanding of where their rights lie and what protections they have against state intrusion? Will the Minister also agree with David Anderson that,

“there should be no question of progressing proposals for the compulsory retention of third party data before a compelling operational case … has been made”,

for it, and agree with him that this case has not been made to date?

The fact is, the draft communications data Bill, to give it its correct title, is hopelessly out of date and can no longer deliver what the police and the security services need while massively intruding into people’s privacy—all pain and no gain. The right honourable member for Sheffield Hallam when he was Deputy Prime Minister took a lot of flak for blocking legislation that required the retention of third-party data. Would the Minister not agree that David Anderson, in his report, agrees with Nick Clegg and the Liberal Democrat position on what some have called the “snoopers’ charter”, even if he cannot bring himself to say that he agrees with Nick?

David Anderson recognises that the Regulation of Investigatory Powers Act is no longer fit for purpose, and we welcome the Government’s approach that there should be a pre-legislative committee of both Houses to look at its successor. Will the Minister confirm that such a committee will be given access to all relevant information to enable it to make a proper judgment on the Government’s proposals?

Finally, we strongly support David Anderson’s recommendation that intercept warrants should be judicially authorised by specialist judicial commissioners, rather than by government Ministers. Surely it is for the police and the security services to decide whether applying for such a warrant is necessary in the interest of national security and it should be for judges to decide whether such action is lawful. Will the Minister give an undertaking that, pending a change in the legislation, the Government will operate within the spirit of the independent reviewer’s recommendations by ensuring that the Secretary of State consults the existing surveillance commissioners prior to authorising such warrants?

My Lords, I thank both noble Lords for their welcome of the report and of the Statement. When we deal with matters of this importance it is vital that we work, as far as possible, in a cross-party way. That was certainly reflected in the commissioning of this review and the Government will seek to continue that as we consider its implications.

The noble Lord, Lord Rosser, rightly asked whether the Regulation of Investigatory Powers Act 2000 is still fit for purpose. That is a key element. Fifteen years ago, we could not have envisaged the plethora of social media that have exploded upon us. Some 204 million emails can now be flying around every minute, placing challenges on those who have the duty of keeping us safe. Therefore, we accept the noble Lord’s important point.

The noble Lord also sought a commitment with regard to clarity on this issue. When we are dealing with matters of great sensitivity that concern people’s individual security and rights, it is vital that the language used is clear and understood, as is the relevant legislation. That is one of the key elements that the pre-legislative scrutiny will bring to the Bill. I am happy to confirm to the noble Lord that the Bill needs to be drawn up before a committee is established. However, when the Bill is presented in the autumn, a Joint Committee will be established which will have a wide remit. It will be for the House to determine the committee’s composition and remit but it should certainly have the very wide remit necessary to carry out its important job of scrutiny.

The noble Lord, Lord Paddick, asked about rights and a Bill of Rights. The Government have now secured a mandate from the electorate to look at ways of modernising our human rights laws and are reflecting on that. We recognise the arguments about privacy but argue that, for people to enjoy that privacy, they first need security. That is where the balance needs to be struck.

The noble Lord also referred to the importance of people having trust in the system, and it is no accident that David Anderson’s report is entitled A Question of Trust. Indeed, he says on page 245 that,

“the road to a better system must be paved with trust”.

That is a central principle, along with the other principles he outlined. In the report he drew on some public opinion data and pointed out that, far from being sceptical about the security services’ use of data, there was wide support for it among the British public, and that:

“66% think that British security and intelligence agencies should be allowed to access and store the internet communications of criminals or terrorists; 64% back them in carrying out this activity by monitoring the communications of the public at large”.

That is not to say that this is the line we are going down. The Government are still considering all the options but the important thing is to work thoroughly, carefully and methodically. This report, along with that of the Intelligence and Security Committee and the RUSI report which is still to come, commissioned by the former Deputy Prime Minister Nick Clegg, will all provide the firm evidence base that we need to progress in this very sensitive area.