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Surveillance Legislation

Volume 764: debated on Thursday 16 July 2015


Asked by

To ask Her Majesty’s Government, following David Anderson QC’s report on surveillance legislation, whether they intend that Ministers should retain the power to authorise surveillance.

My Lords, as I said in the House on 8 July during the debate on the recent reports into investigatory powers, the Government have made no decisions on the proposals within the reports. We intend to bring forward legislative proposals in the autumn that will be subject to pre-legislative scrutiny.

I thank the Minister for his reply. It is important to think that the public understand how and why such decisions are made. However, it is an offence to disclose that a warrant for authorisation of surveillance has been issued, and it is government policy not to talk about security matters, so how can the public understand exactly what the Minister has done and why he has done it? Is some sort of transparency a factor in his thinking?

David Anderson’s report, on which we had a very helpful debate last week, talks about trust, and there needs to be a balance of trust. The issues that are being investigated by our security services and law enforcement agencies are of the most grave and serious nature, so full disclosure is not possible. However, there is an Interception of Communications Commissioner who reviews the decisions taken by the Home Secretary. Should an individual feel that they have wrongly had their communications intercepted, they have the ability to take that up with the investigation tribunal to look into the decision further.

My Lords, the Minister will be aware of the splendid report produced by RUSI looking at intercept which comes up with a very practical and sensible way forward on this issue. The report, tying in with Anderson, is written in such a way that it could almost be a Green Paper, and the two of them taken together could be a draft White Paper. We need something in draft by October this year, because we definitely need to have something in front of the House by early February if we are going to meet the sunset clause. Does the Minister agree that it forms a very sound basis for moving forward with this legislation?

I absolutely agree with the report. I received a copy of it yesterday when it was published, and it is a very readable document. It comes alongside the Anderson review, which is nearly 400 pages long, and the Intelligence and Security Committee report in the last part of the last Session. Taken together, in the round, they will enable the Joint Committee, which we hope will begin pre-legislative scrutiny early this autumn, to make faster progress than would otherwise be the case and therefore meet the important deadline of the sunset clause, to which the noble Lord rightly referred.

My Lords, my noble friend’s Answer to the noble Baroness’s Question is exactly right. She is going to have the opportunity for a quite unprecedented amount of consideration of the important issue of whether warrants should be signed by judges or Secretaries of State. I welcome my noble friend’s answer that this will be discussed further against the RUSI report, the Anderson report and the pre-legislative scrutiny so that the public can see just how important these issues are and the importance that this House attaches to them.

Absolutely, and I think we are all grateful to the business managers for having arranged time for that very important debate before the report from RUSI had actually been received. There were many helpful contributions in that debate, including those from the noble Baroness, Lady Manningham-Buller, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who shared incredible insights from their practical experience of the dilemmas that are faced. On the issue of judicial authorisation of warrants, judgment was split: RUSI and the ISC were in favour of the status quo whereas David Anderson wanted to look at it. That will be work for the pre-legislative scrutiny committee whose deliberations will, of course, be published.

My Lords, can the Minister explain to the House how, if the Government decide not to go for a judicial signature on the warrant, the country will get information from communications service providers abroad, which hold most of the data that would be sought, when they have said that they are highly unlikely to give over information based on a political signature but are likely to co-operate with us based on a judicial signature?

As Sir Nigel Sheinwald, the Prime Minister’s envoy to the communications service providers on this issue, pointed out, our system is not entirely politically based. There is judicial oversight of the process in the shape of the commissioner, who can look into this and review the decisions taken. I hope that that would satisfy. I have to say—although the noble Lord is leading me down that road—that we have reached no conclusions on that, and it will be thoroughly debated publicly before any decision is taken.

On the specific Question asked by the noble Baroness, Lady Jones, will the Minister and his colleagues strongly bear in mind in any consideration the principle of accountability to Parliament and to the public? On grave decisions such as this, it is the Minister who will be held responsible by both Parliament and the public, and that is especially the case if anything should go wrong and a tragedy occur. Will he make that central to his considerations?

It is a major part of the consideration. I think that we were very interested to hear the noble Baroness, Lady Manningham-Buller, who talked about the level of scrutiny that was there and the support for the Home Secretary who takes the decision. We recognise that, ultimately, they are the ones with the responsibility, and they are the ones who should therefore have the authority.

In the debate last week on investigatory powers, the Minister said that the Government would come forward with a draft Bill after the pending Recess which would then be subject to pre-legislative scrutiny. The Minister then said that he hoped or thought that,

“the period of time for pre-legislative scrutiny might be shortened, and that the period of time for scrutiny through the House might be quicker than it otherwise would have been had it not been for all the evidence, reports and consideration”—[Official Report, 8/7/15; cols. 235-36]—

now in the public domain. I am sure that that is a perfectly reasonable hope or expectation to have, but can the Minister confirm that there will not be any government pressure to go further than that by seeking to curtail either the pre-legislative scrutiny process or the period of time for scrutiny of the proposed legislation by Parliament?

That is a fair point. We have been around this track several times before. The Joint Committee chaired by my noble friend Lord Blencathra looked at the communications data Bill and did a very thorough piece of work. We then had the Intelligence and Security Committee report and the Anderson review, which took more than a year to complete. We then had the RUSI review. People are coming together towards a consensus, which should mean that the passage of the Bill, as a result of the diligent work that has gone on before, should be smoother and quicker and therefore we can get the powers to the security agencies that they need to keep us safe.

My Lords, when the Bill is debated and the papers are produced, could we also have a paper detailing so far as possible the infinite damage caused by the refugee in the Ecuadorian embassy and Edward Snowden?

I do not know whether they will be directly linked in the same package, but of course it is open to us to reflect on that. The reality is that our security services do an incredibly important job in keeping us safe against a threat that is getting more severe, as we have seen not only in this country but also overseas in recent weeks.