Consideration of Lords amendments.
Before we come to the first group of amendments, may I say that, as the House knows, there are 377 Lords amendments to the Investigatory Powers Bill, which were passed to this House yesterday evening? I must inform the House that none of the Lords amendments is certified—it says here “are certified”, but that is quite wrong; “none” takes the singular—under the EVEL Standing Orders. The Scottish Parliament passed a legislative consent motion on 6 October, copies of which are available with the Bill documents online and in the Vote Office. I must also inform the House that two of the Lords amendments—270 and 271—engage Commons financial privilege. If they are agreed to, I will cause the customary entry waiving Commons financial privilege to be entered in the Journal.
On a point of order, Mr Speaker. You have made reference to the Sewel convention and to the legislative consent motion being available in the Vote Office. The legislative consent motion from the Scottish Parliament is dated 6 October. Amendment 15—one of the most important amendments we will consider—was passed on 11 October and deals with a matter referred to by the noble Lord Howe as being outside the ordinary ambit of the Bill and a considerable advance from what was in the rest of the text. I am concerned, therefore, that amendment 15 by their lordships is not approved by the Sewel convention or covered by the legislative consent motion that we have received from the Scottish Parliament. I know that, strictly speaking, this is a matter for the Government, not the House of Commons itself, but I fear that the House would be doing a discourtesy to the Scottish Parliament if we were to proceed to legislate on a devolved matter, which media policy is. It would be helpful to have your guidance, and perhaps ruling, on where we should go with the Sewel convention, and perhaps for the Government to clarify their position.
I am very grateful to the hon. Gentleman for advance notice of his point of order. Might I just mention in passing that his exegesis of the legislation, and his courtesy and regard for the principle of courtesy in respect of other Parliaments, are impeccable, as is invariably the case.
As the hon. Gentleman will know—I welcome this opportunity to clarify the position, and it does require clarification—section 2 of the Scotland Act 2016 enshrined in legislation the statement that:
“the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”
That does not prevent the House from considering amendments that the Scottish Parliament has not consented to.
We are just about to come to the first debate on a group of Lords amendments that, as the hon. Gentleman rightly observes, includes Lords amendment 15, and it is, I believe, with that that he is overwhelmingly concerned. The Government have given notice of their intention to disagree with Lords amendment 15, among others. We will have to wait to learn from the debate why the Minister takes that view. I am giving due notice that the House will certainly expect an explanation on that matter—whether the House as a whole does, I feel absolutely certain that the hon. Member for North East Somerset will.
If the hon. Gentleman’s thought about Scottish consent had not already occurred to Ministers, or those advising them, I surmise from the attentive attitudes of right hon. and hon. Members on the Front Bench, including much nodding of heads and expressions of sagacity, that it will have done so now. I hope that will do at least for now. I thank the hon. Member for North East Somerset because he has done the House a service. These conventions matter, and he has reminded us of that point.
Civil liability for certain unlawful interceptions
With this it will be convenient to discuss the following:
Lords amendment 12, and Government motion to disagree.
Lords amendment 13, and Government motion to disagree.
Lords amendment 14, and Government motion to disagree.
Lords amendment 15, and Government motion to disagree.
Lords amendment 338, and Government motion to disagree.
Lords amendment 339, and Government motion to disagree.
The Investigatory Powers Bill will provide a world-leading framework for the use of investigatory powers by law enforcement and the security and intelligence agencies. It will strengthen the safeguards for the use of those powers, including through the introduction of a double lock for the most intrusive powers, and it will create a powerful new body responsible for oversight of them. This is the most important piece of legislation this Government will bring before the House.
I will turn first to the amendments tabled in the other place by Baroness Hollins. As we have just heard from my right hon. Friend the Secretary of State for Culture, Media and Sport, the Government will hold a landmark public consultation relating to the governance of the press and its relationship with the public, police and politicians. This consultation will give everyone with an interest in these matters an opportunity to have their say on this vital issue, which affects each and every one of us in the country. I hope the whole House will welcome the announcement, which shows the Government’s commitment to addressing the issues and recommendations set out in the Leveson report in the most appropriate way.
This is an emotive subject for Members, in both this House and the other place, where Earl Howe set out the Government’s position in relation to this issue during the debate on Report. I hope the House will indulge me while I set out the key points. As I said at the start of my remarks, the Investigatory Powers Bill is one of the most important pieces of legislation the Government will bring forward. It will provide a world-leading framework for the use of investigatory powers by law enforcement and security agencies and, in doing so, protect this nation from some of the most serious crimes and threats. We should not forget that the Bill will also strengthen the safeguards for the use of those powers, and it will create a powerful new body responsible for that oversight.
We heard yesterday in the Lords from peers on all sides about the importance of the Bill and the careful cross-party scrutiny that has got it into the very good shape that it comes back to the House in today. The Bill will provide vital tools for our law enforcement, security and intelligence agencies. It is not, and never was, intended to provide for the regulation of the press.
Whatever the merits of the provisions introduced by Baroness Hollins, this is not the place for them. Their inclusion is a distraction from the very important aims of the Bill. Moreover, they threaten to undermine an important provision in the Bill.
While I entirely accept that this is not the place to deal with those matters, I hope the Minister will recognise that there is very strong feeling on these Benches that the issues in relation to Leveson do need to be dealt with as a matter of some urgency. While I agree that we should not, therefore, accept the amendment, I very much hope that he and other Ministers will ensure that these matters are brought to the House at the earliest possible opportunity, so that they can be fully and properly dealt with.
I am grateful to my right hon. Friend, and I do, of course, recognise the strength of feeling about press regulation, but I also recognise the strength of feeling about making sure we give our security services and our police forces the tools to tackle the paedophiles, the serious and organised criminals and the terrorists who threaten the state and my constituents.
I am wholly in favour of most of the other provisions of the Bill, but that is not the point we are debating now; we are debating why the Government are reneging on their promise, made on 18 March 2013 as part of a package, that we would commence section 40 of the Crime and Courts Act 2013. Does the Minister not realise that if we keep getting statements such as the one we just had from the Secretary of State for Culture, Media and Sport, suggesting that the Government intend to kick this issue down the road yet further, their lordships are simply going to send the proposals back again, and again, and again, with probably even larger majorities?
Prior to Baroness Hollins’s amendments on Report in the Lords, clause 8 provided a basis for individuals to bring civil claims in relation to the misuse of private telecommunications systems. That might include, for example, an employer misusing a corporate network to spy on his or her employees. That is an important safeguard, which was argued for forcefully and convincingly by a number of Members of this House, including the hon. and learned Member for Edinburgh South West (Joanna Cherry). It was in large part on the basis of her arguments that the Government amended the Bill to include this provision.
Let me address the point of order raised by my hon. Friend the Member for North East Somerset (Mr Rees-Mogg). One of the Government’s contentions on why this amendment should be rejected is that it goes against the grain of legislating over and above the will of the Scottish Parliament. As a former Member of the Scottish Parliament, I recognise the importance of the Sewel motion. I urge SNP Members to join us in voting down the amendment, because they cannot pick and choose when devolution is or is not appropriate. Do they wish us to go through the procedures of the legislative consent motion and give the Scottish Parliament the courtesy it deserves, or are they saying that they accept in principle that there are some occasions when we could legislate without a legislative consent motion in the Scottish Parliament? I look forward to the reply from the hon. and learned Member for Edinburgh South West.
My hon. Friend makes a crucially important point. If SNP Members do not require the Sewel consents to be given, then implicitly, as we have an unwritten constitution and operate by convention, they would be giving media policy back to the United Kingdom Parliament.
The Minister asked me a question. I can only remind him of what Mr Speaker said when he was in the Chair: that legislative consent is not required until the Bill has been amended, as the Minister will know very well. Legislative consent to those aspects of the Bill that require it is not sought from the Scottish Government until the Bill has passed through this House. He is therefore setting a false trap. He will remember a phrase from the Scottish Parliament, “My head does not zip up the back.” My head does not zip up the back, and I will not fall into his false trap, but SNP Members will give their support to the Lords amendment on this occasion.
I think we can debate Zippy another time.
This is about an important issue of principle. Throughout all the Bills I have ever been involved in, we in this House have gone out of our way to make sure that we seek the up-front approval of the Scottish Parliament in an LCM before we start down the path of picking and choosing what we do or do not support.
What the hon. and learned Member for Edinburgh South West (Joanna Cherry) said may well be true, but this is our last opportunity to approve or reject the amendment. If it goes back to the House of Lords, and all the other amendments that we make are agreed to, there will be no further opportunity to amend the Bill, so legislating now, without consent, would make the law.
The Minister is in a slightly unfair position because he did not pilot the Bill through the Bill Committee, but I did serve on the Committee, and he can check what happened with his ministerial colleagues. The Government accepted clause 8, on the back of which this amendment rides, as a result of an SNP amendment to reintroduce the tort—or, to use the Scots word, delict—in the Regulation of Investigatory Powers Act 2000. This further Lords amendment rides on the back of an amendment that arose from the historic event of the Government actually accepting an SNP suggestion. I was absolutely delighted about that and will mention it at every opportunity.
In the words of the hon. and learned Lady, my head does not zip up the back either. This is an amendment to an accepted amendment. That does not mean that the amendment is accepted in relation to an LCM—we cannot make that assumption. We should reflect on Mr Speaker’s point that this House does not usually legislate on policy that is not agreed to by the Scottish Parliament in advance.
I am keen to move on, but merely say that how SNP Members vote today will certainly be a clear sign of whether they are embracing a new principle on how we should choose to legislate on issues in Scotland.
As I said, this clause was never intended to provide a basis for claims against newspapers for voicemail interception—so-called phone hacking. Civil claims can already be brought in respect of such activity. In any case, the Bill makes such activity a criminal offence, as is surely right for such egregious interferences with privacy.
If there is a problem to be addressed, this is not the way to do it, and this is not the Bill in which to do it. This is the wrong amendment in the wrong Bill at the wrong time. Governance of the press is an important issue, and it is right that such an issue is subject to full consultation and dedicated scrutiny and consideration. It should not just be tacked on to one of the most important cross-party Bills that this House has debated. This Bill is about the security of the nation. It is a Bill to keep all our constituents safe. Members should ask themselves whether it is appropriate to jeopardise this Bill for the sake of opportunism in the other place.
The solution, of course, would be for the Government to accept Baroness Hollins’s amendments, and then the Bill would be secured, since all of us in this place are broadly supportive of its stated intentions. Many of us have sat through these debates at great length for a very long time.
My hon. Friend is right to say so.
Does the Minister accept that the only objection to this measure that the Government are putting forward is that it is in the wrong place? That appears to be a fairly slim argument. Can he assure people like me who are perhaps wavering on this matter that the terms of reference of the consultation that the Secretary of State for Culture, Media and Sport announced earlier will be sufficiently robust and give a steer on the Government’s good intentions on section 40, because then we might be tempted to be a little more patient in the hope that that consultation will result in an outcome that makes Baroness Hollins’s amendments redundant?
I hear my hon. Friend’s comments, but this is like saying, “Because we’re being blackmailed, we should give in to the blackmail.” The Bill will give powers to our security services and our police to deal with some horrendous crimes and threats to the security of the nation. That does not mean that because someone has tacked an amendment on to the Bill that is not really anything to do with it, we should just give in. We should say, “Let us have the debate about press regulation in the proper forum.” My right hon. Friend the Secretary of State has brought forward a 10-week consultation period. As the House will know, the Government have been put on notice that, at the end of that period, they will need to listen to and engage with everyone’s concerns and to come up with a position. That is not necessarily the end of this matter in Parliament—there will be plenty of other times when pieces of legislation that may be more appropriate come through.
I thank the Minister for that reassurance. I welcome the Government’s approach, particularly in addressing the critical question of the Bill—the balance between security and privacy—and in accepting many of the recommendations on safeguards proposed by the Intelligence and Security Committee, whose Chairman, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), is in his place. May I urge the Government not to allow the Bill, which is fundamentally about national security, to be conflated with, or held up by, the very different and much wider question of media regulation, as urged on us by the other place?
The whole House will hear my hon. Friend’s comments. He is a dedicated campaigner on privacy—in fact, on both parts of the Bill—in terms of what he believes in, and he has been consistent throughout. The House should listen when he says that he wants to make sure that a Bill with good oversight is passed correctly, giving us the freedom then to move on to debate and shape press regulation in, rightly, a different forum.
I rise to speak to the group of amendments and to Lords amendment 15 in particular. I pay tribute to the work of my right hon. Friend the Member for Leigh (Andy Burnham) and my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), who did so much work, on a cross-party basis, to bring the Bill to its current position. However, we still need to investigate unfinished business concerning the relationship between various authorities and the media. That is why the Labour party fully supports the Lords amendments, particularly Lords amendment 15.
The Minister has told us about his landmark consultation, but we are baffled as to why it is needed when we already have the Leveson report, which had so much time, effort and expertise poured into it. It seems to me that the Minister’s vaunted landmark consultation is merely a stalling exercise.
The hon. Lady is new to her position, as is the Minister. I served on the Bill Committee and she is right to point to the work that the hon. and learned Member for Holborn and St Pancras (Keir Starmer) did to build cross-party consensus on what could have been a difficult Bill to land. If the Lords amendments are ultimately rejected by this place and the other place caves in, will the Opposition continue to support the Bill, or will the hon. Lady use that as a crutch on which to base the withdrawal of their support?
We are not in the habit of artifice or crutches. Let us see what Members in the other place do with the Bill, and then we will make our position clear.
The Opposition have consistently called for the Leveson recommendations to be implemented in full. The public have waited long enough. In 2013, following extensive consultation with victims of press intrusion, a new system of independent self-regulation was agreed by what were then the three main political parties. It is therefore disappointing that Members in the other place have had to table an amendment, and that we have to debate it, to get the Government to honour their promises. It is disappointing also that the Minister calls legitimate amendments, which have been passed in good faith in the other place, blackmail. What kind of way is that to talk about our friends in the other place?
Is not the point that the amendments almost exactly replicate legislation that was introduced by Conservatives in another Act? It would be bizarre in the extreme for the Government to say that they should not become law. If the Government want their Bill, they can have it today. All they have to do is say, “Yes, we agree to all the amendments.”
When the hon. Gentleman heard me say those things, I was not yet shadow Home Secretary.
There were concerns when section 40 of the Crime and Courts Act 2013 was not commenced in summer 2015. The right hon. Member for Maldon (Mr Whittingdale), the then Secretary of State for Culture, Media and Sport, was asked about it by the Culture, Media and Sport Committee, but he refused to be drawn on it. He said at the Society of Editors conference in October 2015 that he was not minded to commence section 40. We believe that that is a breach of the cross-party agreement and that it breaks the promises made to the House and, perhaps even more importantly, those made to victims.
Just last week, the Press Recognition Panel produced its first annual report, which stated that the Leveson system has not even been brought into effect. Only after section 40 is commenced will the system be in place. The PRP was highly critical of the Government’s failure on section 40 and described its non-commencement as an interference in the freedom of the press, because it allowed the Government to hold section 40 commencement as a sword of Damocles over the press.
Just last Monday, the Secretary of State for Culture, Media and Sport indicated that she had no intention of commencing section 40. The following day, newspapers ran stories saying that the Government had ditched section 40, crediting a Government source. The Minister cannot be surprised, therefore, that we are pressing the issue. It is reprehensible that the Government are resisting implementing what is widely regarded as a key provision of the Leveson inquiry. While the Government refuse to fulfil their commitments, we will not back down from supporting measures to assist victims of press abuses and their families.
For all the differences between me and the hon. Lady, I totally understand the importance that she attaches to section 40 and the issue of costs. I join her in wanting to scrutinise them very carefully and there will be ample time to do so, but may I gently say to her that it would be wrong and irresponsible to hold up, let alone frustrate, this Bill on account of those legitimate concerns, which can be dealt with separately and discretely?
We are not attempting to hold up the Bill; all the Government have to do is accept the amendments.
Section 40 of the Crime and Courts Act remains unimplemented, despite widespread support in principle from Members on both sides of the House, including Front Benchers. The amendment, which the Government want to vote down, was tabled in the Lords by a Cross Bencher, Baroness Hollins, and overwhelmingly passed by 282 votes to 180. That is one of the reasons that I am shocked that the Minister regards it as blackmail. It would implement, as my colleagues have said, the same provisions as those contained in section 40 of the Crime and Courts Act in relation to claims against media organisations over phone hacking and other unlawful interception.
The amendment goes further. Unlike section 40, it would not require ministerial approval, which we regard as an improvement, so it would automatically implement section 40 in relation to phone hacking claims. That would restate the very clear intention of Parliament, as previously expressed in 2013. I repeat that the amendment would not be necessary if the Government had fulfilled their stated commitment to implementing section 40.
Part 2 of the Leveson inquiry sought to investigate the original police investigation and corrupt payments to police officers and to consider the implications for the relationships between journalists, politicians and the police. We are therefore going to have to undergo further weeks of consultation. Previously, Ministers had said that part 2 would begin after the criminal cases relating to phone hacking had concluded. Then they said that they would make a decision on whether it would begin once all the criminal cases had concluded.
If we look at the provisions affecting journalists and the press in this Bill, we will see that there is no protection of journalistic sources. Law Officers may act on their own cognisance to access data, collect and retain them for 12 months, and share them with other bodies, including overseas agencies. It would be a simple matter to establish the identity of a whistleblower in any public or other body by trawling the journalist’s internet history. That would be detrimental to all of society and to fundamental press freedoms. The contradiction here is that there is a free-for-all in ignoring the thinking behind Leveson, and yet there is a failure to implement section 40. Some of the most irresponsible practices of the press go unchecked, and there is no recourse for anyone except the ultra-rich and those who can afford libel lawyers.
To function properly, the press should be able to hold all who are in power to account and unearth important wrongdoing. That is wholly in the public interest. But the Government stand accused of allowing muck-raking, savage attacks on the vulnerable and the defamation of those who cannot afford to defend themselves legally, while proper journalism in the public interest—holding the powerful to account, giving an outlet to whistleblowers and investigating matters in the public interest—is to be fatally undermined. The proposals, in their current shape, run the risk of being seen as a charter against valuable and public interest journalism, but for the worst journalistic excesses.
I want to focus on several aspects of Lords amendment 15. First, I want to focus on what it is designed to do, in which I think it is fundamentally wrong-headed. It provides for an increase in the penalty that will be applied to newspapers where an accusation of phone hacking is made in a case that is brought against them. That is difficult, because in the ordinary course of events, a newspaper will want to protect its sources. A newspaper that tried to protect its source for a story would not be able to prove the negative that phone hacking had not been involved, even when it had not been.
The immediate risk will be that newspapers will be reluctant to print investigative stories because they will be unable to avoid the double penalty of extra costs, even in the event that their story was true. The particular outrage of amendment 15 is that the press could report a story accurately, fairly and honestly but still find that, if they were taken to court by an aggressive litigant, they would have to pay the litigant’s costs. That is an absolute charter for the very rich to bully the press into not publishing stories about them. It will not help the poorest in society, who will not be able to afford the initial fees to get a case going, but anybody with any funds will be able to use it as an opportunity to bully the press into not printing anything disagreeable about them.
My hon. Friend is absolutely right. The regional press and local newspapers will simply not be able to print stories that are critical of almost anybody. Perhaps MPs do not want any critical stories to be printed about them. We would be able to bully the local papers in our constituencies by saying, “We will bring a court action against you, and, by the way, we think that you might have been hacking our telephone,” and they would risk double costs. That is absolutely ruinous to a free press at a local and national level, because such costs run into hundreds of thousands of pounds. Even the biggest newspaper groups find that level of cost very difficult to absorb. The amendment will therefore get rid of the free press. Our press will be afraid to go after the rich and the powerful. It will be afraid to go after leading politicians whose friends can lend them the money to start a case off. It will be a supine press.
As ever, I am listening to my hon. Friend’s comments with a great deal of interest. I fear, however, that he may be over-egging things a little bit. There are, of course, very large organisations behind the apparently small media outlets that he refers to. He probably received a note this morning, as I did, from News Media Association, pressing the case of smaller newspapers. In truth, it represents a smokescreen for the interests of larger press organisations. Does he not share my concern that we need to disentangle the very small press outlets that we heard about earlier from regional press, which tends to be controlled by larger operations?
That is not what the amendment does. It includes all the press, so the Midsomer Norton, Radstock and District Journal will be included, as will the Farrington Gurney parish magazine. Every single publication will be included and will be under this threat.
I hesitate to criticise the wisdom of my hon. Friend the Member for South West Wiltshire (Dr Murrison), but, from a journalistic perspective, I humbly submit that nobody in the modern media world feels as though they are working in an enormous environment with oodles of cash swimming about the place. This will have a chilling effect across national, local and regional media.
My hon. Friend is right. Although some newspapers are part of bigger media groups, those media groups will not be willing to fund indefinitely loss-making newspapers. The journalism that is the core of not only the print media but most of what people get online, which is not covered by the measure anyway, comes from a narrowly profitable print media. If that ceases to have any chance of being profitable, where will all the internet content that people read for nothing come from? Where are the resources to provide us with investigations into wrongdoing? Wrongdoing—not only of politicians, but of institutions—is revealed year in, year out. Great footballing institutions were investigated by The Sunday Times. How will the newspaper be able to do that if it gets sued and has to pay double damages on merely the allegation that hacking has taken place? This is a real threat to press freedom.
Press freedom is of the greatest possible value, and it is one of the reasons why the United Kingdom is such a stable polity. The press shines a light on corruption, on criminality and on wrongdoing. It holds people to account. It brings them to book. Why do we give an absolute protection to whatever is said in the House, so that it cannot be contested in any court outside Parliament? We give ourselves that protection because we so value freedom of speech. We should be extending that protection as widely as possible—not holding it narrowly to ourselves, but allowing the country at large to enjoy the same benefit.
The chippy speeches made by those in the other place, and unfortunately in this House too, who have come under the spotlight of the press and had a rude story printed about them that they did not like—about a big scandal, a little scandal, something that caused offence or something that upset their spouse—ought not to be used to take away a fundamental constitutional protection of the greatest importance. That should not be done by the back door, by tacking something on to a completely different Bill in a hissy fit because the Secretary of State has not done it under existing legislation. That is quite a wrong way to proceed.
That brings me on to the second part of what I want to say. The first part is of overwhelming importance: the freedom of the press is an absolute, and it is much, much better to have a free and irresponsible press than it is to have a responsible but Government-controlled press. As my hon. Friend the Member for North Dorset (Simon Hoare) would like me to say, the principle of England free rather than England sober should be at the heart of our understanding of the press.
The constitutional aspects of how we legislate are also important, however. In this House we have very strict rules, which are implemented fairly by the Clerks and the Speaker, about the scope of Bills, and we cannot tack on random things that we feel it would be nice to have. The House of Lords, being a self-governing House, can tack things on. Its Members have lost the self-restraint that they used to have of following constitutional norms in relation to legislation. They showed that in the last Session of Parliament in relation to boundaries, and they are doing so again now. I am concerned that the SNP is not more worried about the Sewel convention.
I hesitate to give the hon. Gentleman a lecture on constitutional procedure, but I can give him full comfort on the points he has raised if he cares to consult the devolution guidance note 10. It states:
“During the passage of legislation, departments should approach the Scottish Executive about Government amendments changing or introducing provisions…or any other such amendments which the Government is minded to accept… No consultation is required for other amendments tabled. Ministers resisting non-Government amendments should not rest solely on the argument that they lack the consent of the Scottish Parliament unless there is advice to that effect from the Scottish Executive.”
The note goes on to explain what happens in such a situation:
“The Scottish Executive can be expected to deal swiftly with issues which arise during the passage of a Bill”.
With great humility, I want to say that on this occasion the hon. Gentleman is mistaken.
I will cover that point, and then swiftly come to a conclusion. The amendment was passed on 11 October, but there has been no response to it, and this is the very last opportunity to decide whether this provision should pass into law. If it passes into law, the Scottish Parliament will have had no opportunity to give its consent to what, in effect, is the repatriation of a power from the Scottish Parliament to the UK Parliament. It is quite right that the Government have not asked for such consent, because the change has not been made on a Government amendment, but SNP Members might well have wanted to seek the guidance of their friends in the Scottish Government to determine whether this was acceptable and to get their consent.
I will leave the hon. and learned Lady to come back to this point in her own speech.
These forms are very important. I would not pretend that I am anything other than a Unionist, but I believe that the Union will do well if we observe the norms and the courtesies between the various Parliaments. This Parliament must be exceptionally careful about overriding things that have been devolved, as media policy clearly has been, and we should therefore tread on such areas lightly.
The SNP should be cautious about using this in a politically opportunistic way, however convenient that may be. There will come a time when it is politically convenient for those on the Treasury Bench not to use the Sewel convention, but to get a Back Bencher to table an amendment that will go through without needing the Government to ask for consent at a very late stage in the proceedings, perhaps even as an amendment to a Lords amendment, and such an amendment will go through, with the Sewel convention brushed aside. If SNP Members say that that is perfectly all right and that that is the way to do it, that will leave such conventions in disrepute and will lead to rows between the constituent Parliaments. Basically, disrespect will be shown by one Parliament of another, which will become very serious constitutionally. For a one-day win, they may be risking a constitutional imbroglio.
I rise to give the Scottish National party’s support to this group of Lords amendments.
Much was promised of the Lords when the Bill left this House—many Members had deep concerns about the Bill’s intrusion on civil liberties and about the security of data—but I regret, although I am not surprised, to say that the Lords amendments as a whole have not lived up to the expectations that some of us had. Although there have undoubtedly been some improvements in the safeguards afforded by the Bill, which we intend to support later—they are the result of Government amendments in the Lords that largely arose from suggestions made by the opposition and the Intelligence and Security Committee—we do not think those Lords amendment go far enough, and I will give specific examples of that later.
At the moment, we are dealing with the group of Lords amendments that some people, for convenience, have called the Leveson amendments. I want to knock firmly on the head any suggestion that Scottish National party Members or the Scottish Government are making any concessions in relation to the Sewel convention. Hon. Members would no doubt be very surprised if we did, but we are not doing so. Unlike the Minister, we are following the proper procedure, as laid down in devolution guidance note 10 on “Post-Devolution Primary Legislation affecting Scotland”. As I have already said, the note specifically comments on such amendments. In paragraphs 18 and 19, which I will read in full because this is very important, the note states:
“During the passage of legislation, departments should approach the Scottish Executive”—
or the Scottish Government, as they now are—
“about Government amendments changing or introducing provisions requiring consent, or any other such amendments which the Government is minded to accept.”
Clearly, Lords amendment 15 is not a Government amendment, and the Government are not minded to accept it. In such a situation, paragraph 18 says:
“It will be for the Scottish Executive to indicate the view of the Scottish Parliament.”
Very importantly, it goes on:
“No consultation is required for other amendments tabled.”
It is not therefore incumbent on the UK Government to consult the Scottish Government about opposition amendments. It goes on:
“Ministers resisting non-Government amendments should not rest solely on the argument that they lack the consent of the Scottish Parliament unless there is advice to that effect from the Scottish Executive.”
I know as a matter of fact that there is no advice to that effect from the Scottish Government, because I spoke to the Minister concerned about that at the weekend. Paragraph 19 says:
“The Scottish Executive can be expected to deal swiftly with issues which arise during the passage of a Bill, and to recognise the exigencies of legislative timetables (eg when forced to consider accepting amendments at short notice). Nevertheless since the last opportunity for amendment is at Third Reading in the Lords or Report Stage in the Commons the absence of consent should not be a bar to proceeding with the Bill in the interim.”
That is what the guidance note states, so the point made by the hon. Member for North East Somerset (Mr Rees-Mogg) is fallacious. This is not a Government amendment or an amendment that the Government are minded to accept; it is an opposition amendment. It is perfectly open to SNP Members to support the Lords amendment at this stage without making any concession. Only in the event that the amendment is passed by this House will it be incumbent on the Government to go to the Scottish Government and the Scottish Parliament to get a legislative consent motion. This point is a complete red herring.
I assure the hon. Gentleman that it would not come to that, because if the amendment is passed by the House, the Scottish Government will grant a legislative consent motion. The SNP, which is in opposition in Westminster and the Government in Scotland, has discussed this issue in detail over the weekend—I discussed it with the Scottish Government Minister—and we have a position on Lords amendment 15. I will now set out our position, but I am very conscious of the time, so I will be as brief as possible.
As I said earlier, Lords amendment 15 rides on the back of clause 8, and I am very proud to say that it arose from an SNP suggestion in Committee for such an amendment. We have heard about the effect of the Lords amendment. In my respectful submission, the effect will be good: no newspaper should be involved in telephone hacking, and if one is, it should face the consequences. I want to make the SNP position clear.
Section 40 of the Crime and Courts Act, about which we have heard much today, was passed in March 2013. It was part of implementing the Leveson inquiry recommendation that any new regulator set up by the press should be accredited as independent and effective. The purpose of section 40 is to provide costs protection for claimants and Leveson-regulated newspaper publishers. It was passed in this House with cross-party agreement, including the support of SNP MPs. There were rather fewer SNP MPs then than there are now, but my colleagues supported the then Bill. As has already been said, the UK Government have reneged on implementing section 40 on many occasions. Today’s announcement of a consultation kicks its implementation further into the long grass.
As has correctly been said, section 40 extends to England and Wales only, because the regulation of print media is devolved to the Scottish Parliament. The Scottish Parliament has provided cross-party support for the UK Government’s actions to implement the royal charter. The Scottish Government will continue to monitor the current press regulations and work with other parties in Scotland and at Westminster to ensure effective regulation of the media on a non-political basis.
The majority of the press, and in particular the regional press in Scotland, were not involved in the sort of malpractice that prompted the Leveson recommendations. It is therefore the view of the Scottish Government and the Scottish National party that any policy in this area in Scotland must be proportionate and must balance the freedom of the press with the public desire for high standards, accuracy and transparency.
That said, the protection afforded by section 40 when brought into force would be available to Scottish litigants who chose to sue newspapers based in England and Wales. Regrettably, a number of major newspapers based in England were involved in the sort of malpractice that prompted Leveson, and it is therefore right that such protection should be afforded. The limited amendments that we are discussing will not affect small or regional newspapers adversely at all, because they have not been involved in phone hacking, and, I assume, do not have any plans to become involved in it.
Scottish National party MPs are going to support the Lords amendments to provide costs protection across the UK for claimants and Leveson-regulated news publishers in claims for unlawful interception of communications, including phone hacking. I hope that as a result of the amendments some good, at least, will come of this Bill’s passage through Parliament, in the event that this House is minded to support them. I will be crystal clear that nothing I have said involves any concession whatever about the primacy and importance of the Sewel convention, which is now enshrined in legislation. If anyone is in any doubt on that, they should go away and read carefully the guidance note from which I have quoted at some length this afternoon.
On memorandum 10, to which the hon. and learned Lady refers, is she saying that she is happy to accept the principle that in future when amendments come forward that are not Government amendments nor amendments that the Government are minded to accept, whether from a friendly Back Bencher or an unfriendly one, we do not have to consult the Scottish Government for a legislative consent motion?
Yes, I should be. But being locked up as a Minister, I did not have the benefit of hearing the wise constitutional pronouncements of my now prone hon. Friend the Member for North East Somerset (Mr Rees-Mogg)—very few hon. Friends will be able to see him as he is sunbathing at the moment. I have found myself in an “Alice in Wonderland” world, where the hon. Member for Hackney North and Stoke Newington (Ms Abbott) was praising the House of Lords from the Labour Front Bench, and my hon. Friend was attacking it. I really did not know where to turn. That is the first thing that has interested me in the debate.
The second is the extraordinarily complex constitutional argument going on about the various powers of the Westminster Parliament and the Scottish Parliament. I think we have come to the clear conclusion and have constitutional clarity that this House can now amend legislation that then goes into force in Scotland without waiting for a legislative consent motion from the Scottish Parliament. That is a welcome, if interesting, concession from the Scottish National party.
As my hon. Friend the Member for North East Somerset pointed out, the Scottish Parliament has had plenty of time to let this House know its views on the amendment, but has not done so, and the hon. and learned Lady is now going to support it. She cannot answer the question put by the Minister, namely what would be the constitutional position if, having passed this amendment, the Scottish Parliament then refused the legislative consent motion. That question was also put by my hon. Friend the Member for North East Somerset; it was at that point I knew I was on to something, because I was going to ask her exactly the same question.
The third interesting thing about the debate is that we have spent the entirety of it talking about the regulation of the press, when we are debating a Bill that is called the Investigatory Powers Bill and is about regulating the work of the security services. That work is very important. The Bill needs to be passed, as I understand it, by the end of the year.
I will not support Lords amendment 15. I will support the Government, for four clear reasons. First, as the Minister put it—I could not put it any better—it is the wrong amendment, to the wrong Bill, at the wrong time. This is not a Bill on press regulation. [Interruption.] I do not know where the hon. Member for Hackney North and Stoke Newington is getting her instructions from, but clearly having taken the phone call for which she has left the Chamber she will come back and no doubt elucidate the complex issue of Scottish and Westminster relations for us.
Does my right hon. Friend agree that there is some help for us in this extremely big Bill at clause 232, on review of the operation of the Act? Although we cannot tell what the consultation on Leveson will come up with—there are four options in the document I have just read—we can come back in five years’ time and, if we are concerned about the implementation of section 40 of the 2013 Act, in our review of the Act this Bill will become we might be able to revisit a Baroness Hollins-type amendment from the other place.
No. I have read the Bill, and in particular spent some time pondering whether clause 232 could help us in these circumstances, and came to the conclusion that it could not. A five-year review of an amendment, passed in the other place, that has nothing to do with the Bill did not strike me as something the Bill’s drafters had in mind—I am sure the Minister will clarify that for us—when they put in place the five-year review. They want that review to be of the very important measures in the Bill that govern the operation of the security services and how they are able to carry out their investigations.
Regardless of one’s views on the implementation of section 40, this amendment is absolutely the wrong way to do it. It is, to coin a phrase, opening up a back door to implement section 40 when it should be for the Government to have a debate in this House on whether that is appropriate.
That brings me to my next point, which is of course about the statement made earlier in the house by my right hon. Friend the Secretary of State for Culture, Media and Sport, who made it clear that there will be a consultation on the implementation of section 40. Now, to quote a former editor of The Guardian once in the Chamber is bad enough; to quote him twice may be a misfortune. But I remind the House that he wrote on Sunday in The Observer that he would like to see section 40 “mothballed”. As I said earlier, that may perhaps go too far, but the tone of his very thoughtful article was that the position we have come to on potential regulation of the press has been circumspect and perhaps tactical rather than strategic. Going forward, this House has an opportunity to talk about a regime that actually works. As my right hon. Friend the Member for Maldon (Mr Whittingdale) said during the statement earlier, the current system of press regulation itself does not take into account wholly unregulated arenas such as Facebook and so on, where so many people go to get their news.
That brings me to my third point, which is a more general one on press regulation, as that is what we are debating because of this Lords amendment. We should give IPSO time to settle down. It is introducing a system of arbitration. It has something like 2,500 members. It could take into account the issue of how so much of the information we now get is available in the unregulated sphere that is the internet.
My fourth point echoes the excellent points made by my hon. Friend the Member for North East Somerset on the impact on newspapers. I said many times as a Minister that our newspapers, and our local and regional newspapers in particular, faced a perfect storm, with both their readership and the classified advertisements that were their revenue migrating on to the internet.
I take issue here with the hon. and learned Member for Edinburgh South West (Joanna Cherry). She is quite right that regional newspapers were not affected by the phone hacking scandal, as they did not participate in phone hacking. But it is also right to say that they are the ones that have been contacting Members to point out how section 40 could have an impact on them. That is why my right hon. Friend the Secretary of State’s consultation on section 40 is so welcome.
That is precisely the point. I was intrigued by what the hon. and learned Lady said. She said that they had not hacked and would therefore not be affected. This is not some retrospective legislation that will impose costs on newspapers that have hacked; it is legislation that will impose costs on newspapers in the future. Again, I hate to sound utterly feeble in holding on to the coat tails of my hon. Friend the Member for North East Somerset, but I could not put the argument better than he did. The key point about the clause—I would probably oppose it even it was in the right Bill—is that it gives anyone who wants to “try it on”, to use a phrase that is perhaps slightly casual for this Chamber, the opportunity to do so with a newspaper that wants to protect its source. The claimant can allege that information has come to the newspaper by means of phone hacking or interception of email. It is then, as my hon. Friend said, up to the newspaper to prove a negative. Common sense dictates that the only way it can do that is to, effectively, give up its source.
In answer to my hon. Friend the Member for South West Wiltshire (Dr Murrison), it is precisely the regional newspapers which could be hit by this measure. A small claim, one in the tens of thousands of pounds rather than in the hundreds of thousands, can still cause them immense financial damage. As MPs, we all know that our regional papers have been through a torrid time. Ten years ago when I started as the MP for Wantage, every one of the four major towns in my constituency had their own dedicated reporter. I have seen the decimation of journalism in my constituency, although I praise my local newspapers for holding on as much as they can to their journalists.
I will not be supporting the amendment. I will support the Government in the Lobby.
I was struck by the Minister—well, not physically—I was struck by the Minister’s accusation that I was an impatient man. That felt just a little bit patronising. It reminded me of the time I was in the theatre and the couple in front of me, as the curtain was about to rise, were having a terrible row. The woman said, “The worst of it is that you are so blasted paytronising.” The man kissed her on the forehead and said, “It’s ‘pahtronising’, dear.” [Laughter.] I don’t know how Hansard will write that up.
The Minister’s only argument was that this is the wrong Bill—that was his only argument. Interestingly, the Minister in the House of Lords, when these Lords amendments were carried, said that a clear message had been sent by the debate, which would not be lost on her right hon. Friend the Secretary of State for Culture, Media and Sport as she considered these matters. Well, that was then. Today, we have seen that the Secretary of State for Culture, Media and Sport has no interest whatever in what their lordships have to say on this matter, even though this was a Cross-Bench Lords amendment carried by a majority of very nearly 100. She has decided today to effectively try to unwind the whole of the Leveson provisions. That is the problem we face.
Let me take the House back to 18 March 2013. It was an extraordinary day. Lord Justice Leveson had produced his report on 29 November 2012. For the first time in our history, the Prime Minister came to the House to seek a Standing Order No. 24 motion, so that we could urgently debate the regulation of the press and the royal charter that had been agreed over the weekend in 48 hours of negotiations in the Leader of the Opposition’s office. The royal charter, which can be amended only by a two-thirds majority in this House and a two-thirds majority in the House of Lords—it is here to stay, I would suggest—would set up a press recognition panel. Accompanying that was to be an amendment to the then Crime and Courts Bill. Why do those who argue that the Investigatory Powers Bill is the wrong Bill because it does not relate to press regulation think it was right to amend the Crime and Courts Bill on the matter of press regulation, something the right hon. Member for Wantage (Mr Vaizey) advocated?
Is the hon. Gentleman not—I dare say inadvertently—making the point that underscores, rather than undermines, the Minister’s position? He is drawing attention to the fact that when this place acts in haste in response to an event, as heinous as it might be, it very often gets it wrong. That is why the announcement made by my right hon. Friend the Secretary of State for Culture, Media and Sport today, now that a passage of time has elapsed since all the brouhaha about it and we will have the 10-week consultation, is the proper way to deal with what is a serious issue to which the hon. Gentleman has drawn the attention of the House—not to tack something on to the end of a Bill.
Order. The hon. Member for North Dorset (Simon Hoare) cannot give way and the hon. Member for Rhondda (Chris Bryant) does not have to tell him to give way. I recognise the sarcasm. What he meant was that the intervention was too long. The hon. Member for North Dorset will have the opportunity to make a really long speech if he would like to, but please we must have short interventions.
Well, I do not think the hon. Gentleman will be allowed to make a very long speech, as we do not have much more time. He is completely and utterly wrong. He has dragged himself into a hermeneutic circle and he will never get out of it.
When the amendment—which was carried by 530 votes to 13 to become section 40 of the Crime and Courts Act 2013—was tabled, the then Secretary of State for Culture, Media and Sport, the right hon. Member for Basingstoke (Mrs Miller) said:
“Today marks a turning point. We can move on from simply talking about Lord Justice Leveson’s report to start acting on it, with a new package...The package includes a new royal charter, as announced by the Prime Minister earlier; a new costs and damages package that seeks to maximise incentives for relevant publishers to be part of the new press self-regulator; and one short clause reinforcing the point that politicians cannot tamper with the new press royal charter, which is the subject of debate in the other place.”—[Official Report, 18 March 2013; Vol. 560, c. 698.]
Why was there an all-party deal? Because the Leveson inquiry exposed real failings both in the press and in the regulatory system. Many of us felt that we, the elected politicians of this country, had failed. Whether out of partisan ambition, deference, cowardice or a genuine determination to do everything in our power to protect the freedom of the press, we had nonetheless failed. We had developed relationships with the press and the media that were so cosy that the people no longer trusted us to make the best decisions on these issues in the national interest. We were on trial as much as the press itself. That is why we all agreed that we had to find a better way forward.
Above all, we knew there had to be a genuinely independent system of redress. I do not often agree with the hon. Member for North Thanet (Sir Roger Gale), but he said that it could not just be
“an updated version of the Press Complaints Commission. God forbid that it is”—[Official Report, 18 March 2013; Vol. 560, c. 662.]—
because that would be doomed to failure. But without the commencement of section 40, that is precisely what we have got. IPSO is the Press Complaints Commission in all but name. It is not independent in terms of its finances, the membership of its board or the decisions it makes. It is entirely compromised, as recent decisions have shown. The press marks its own homework and, surprise, surprise, it always gives itself gold stars. Five hundred and thirty Members wanted it to be independent of government and independent of the press, too.
It is not my business to decide which of the two is better. The whole point is that we set up—through a royal charter that can be changed only by a two thirds majority here and a two thirds majority in the other place—a body that would take the decision at arm’s length from us. My anxiety about today’s decision by the Secretary of State for Culture, Media and Media and Sport is that she is bringing this matter right back into her inbox, which I think is wholly mistaken. The press would be best advised not to encourage that.
Since that day in 2013, Conservative Ministers have repeated their commitment to the package time and again: the right hon. Member for Basingstoke on 18 March 2013; David Cameron and Viscount Younger of Leckie on that same day; the right hon. Member for Wantage (Mr Vaizey) on 10 April 2013; the right hon. Member for Basingstoke again, six times, on 16 April 2013; the right hon. Member for West Dorset (Sir Oliver Letwin) on 16 April 2013; the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright), now the Attorney General, on 25 April 2013; Lord Gardiner of Kimble on 3 July 2013; the right hon. Member for Wantage—again—on 4 December 2013; David Cameron in The Spectator on Boxing day 2013—a nice little Christmas present; Lord Gardiner again on 2 April 2014; the right hon. Member for Bromsgrove (Sajid Javid), then Secretary of State for Culture, Media and Sport, now the Secretary of State for Communities and Local Government, on 20 January 2015; and indeed, the Government did so as late as 26 June 2015. All these people constantly reaffirmed that they were in favour of the commencement of section 40 of the Crime and Courts Act 2013. No wonder, then, that some Members in this House are impatient; no wonder there are Members in the House of Lords who are impatient and want the Government to get on with it. That is precisely why the amendments were tabled.
To be honest, this is a question of keeping faith. Promises were made to the victims of phone hacking and press intrusion: people such as the family of the murdered schoolgirl, Millie Dowler, whose voicemail messages were hacked by the News of the World, giving her family the desperate false hope that their daughter was still alive; people such as the family of Madeleine McCann, whose mother Kate said she felt mentally raped by her treatment at the hands of the press.
All that means that we must have Leveson 2. It was never meant to be that there would be a decision on whether Leveson 2 would happen once the legal cases were complete; it was meant to be that Leveson 2 would happen once those cases were out of the way. Commencement of section 40 was also intended. There is no earthly reason why it could not have been commenced already. What everybody wants is redress—true redress—because when it comes to privacy and correction, it is phenomenally difficult to get “no win, no fee” agreements with lawyers. The awards that might come at the end are relatively minor, and lawyers simply do not want to take the risk.
There is a real danger now, even more than there was five years ago, that those intruded upon—ordinary members of the public and the victims of crime—will become the victims of intrusion all the more, without ever having had any opportunity for redress. People have said to me many times, “You can always go to the courts, if you have been libelled,” but the victims of Hillsborough—both those who died and the groups that were treated to calumny by the press—had no opportunity to go to the courts to seek redress. That is why we needed change.
I want a robust, naughty, scabrous and vibrant press. I even expect it to break the law on occasion when it is chasing down corruption and wrongdoing—as long as it really is in the interests of the public. I also want ordinary members of the public to get a real right of redress, provided impartially, independently and at minimal cost to them. The only incentive we have to persuade IPSO to become a better and more independent body that actually provides that right of redress is section 40 of the Crime and Courts Act 2013. The Government have shown themselves repeatedly determined not to commence it, so of course the House of Lords is tweaking the Government’s nose and saying, “Come on, get on with it”. Conservatives promised it—
Order. I am sure that in addition to the things that the hon. Gentleman says that he wants, he will also want a full debate this afternoon and he will not want to stop other Members from speaking. I am sure that he is going to conclude very soon.
I am grateful to be called to speak in this important debate. The changes that the Lords have brought before this House are significant because they adulterate what is fundamentally an essential Bill. The Investigatory Powers Bill, which has been brought here after the careful, bipartisan—in fact, multi-partisan—work of my right hon. Friend the Prime Minister when she was in her former post, is one of the most important Bills that we have brought forward. It has been brought forward with very little trouble or argument because of the efforts put in beforehand. To find ourselves in the House of Commons today debating an amendment that does not even belong in the Bill because Members of the House of Lords have misunderstood its purpose is deeply unhelpful.
Moreover, as was pointed out by my hon. Friend the Member for North East Somerset (Mr Rees-Mogg), the ability to shoehorn amendments into Bills starts to take us into the pork-barrel politics of the United States. I think that that would be a great error not only for our country but for the conduct of government, because it would lead to our seeking to add the bridge, the road or the school to the back of a Finance Bill—or, indeed, an Investigatory Powers Bill.
The Bill matters fundamentally, particularly today. I do not like to bring up the subject of The Guardian too often—after all, the only reason we had it in the officers’ mess was to dust it for prints—but now that it has been mentioned a few times, I think it wise for us to read what appears on the front page today. The head of MI5 himself has given an interview to The Guardian, presumably—well, I will stop there, but his warning is very clear: Russian activity in this country has now grown to a level which is simply unacceptable, which is genuinely a threat to our nation and with which his organisation must now deal. I am delighted that the Bill is back in the House of Commons, because we now have an opportunity to cut the barnacles off the boat and get rid of this amendment.
The Leveson legislation was introduced in the last Parliament, when I was not here and nor were many of my colleagues. I hope you will forgive me, Mr Deputy Speaker, if I express some dissatisfaction about the speed with which the last Parliament debated the legislation. I also hope you will accept that some of us who are new to this place are deeply uncomfortable with state authority over a free press. My hon. Friend the Member for North East Somerset and my right hon. Friend the Member for Wantage (Mr Vaizey) have already spoken eloquently, so I will not go over the same ground, but I feel very uncomfortable when I am asked to set up a regulator to govern who governs me, and I feel deeply uncomfortable when I am asked to say who is the judge who can hold me to account.
I hope the hon. and learned Lady will forgive me if I do not, for reasons of time.
Having been brought up at the foot of a judge who did indeed hold me to account—very actively—I now realise that the judiciary works better when it is appointed without the control of the House and the Government. I will therefore not encourage the Government to invoke section 40 of the Crime and Courts Act 2013, and I will speak against it during the investigation that is to be conducted by my right hon. Friend the Secretary of State for Culture, Media and Sport over the next 10 weeks.
Members have asked how on earth this measure could possibly bully the regional press. We all know that a free press is the lifeblood of democracy, but the troubles experienced in borough and county councils across our land are partly due to the fact that our regional presses are being silenced. Too many are closing, and too few now have regular reporters in the county council rooms, the borough council rooms or the district council rooms to follow what elected members are saying. I think that what we are doing here will increase the pressure still further. Forcing organisations to join IMPRESS, for example, imposes a cost that many cannot bear.
Other Members have mentioned the unlikelihood of any regional paper or regional organisation hacking a telephone, and it is indeed deeply unlikely. Of course, we all thought it was deeply unlikely that a national paper would do that, and then we found that one had; but that does not matter, because clause 8 does not tell us whether it is likely or unlikely. It merely sets out the penalty, and in doing so, effectively holds all those organisations to ransom. It forces them into organisations like IMPRESS, to which they must pay an extra tax.
Given the parlous economic situation of so many regional media outlets—in my own wonderful county of Kent, many papers have lost their correspondents from various towns—I cannot possibly support the amendment. It would be bad for the regional press and for a free press, and it would therefore be bad for our democracy and for us. Furthermore, it would act as a brake on an essential piece of legislation—a piece of legislation that we need to keep us safe, and to ensure that the safety of all those whom we are here to represent is also guaranteed.
I always listen very carefully to the hon. Member for Tonbridge and Malling (Tom Tugendhat), and I noted that he said he was not a Member of the House when these measures became law. I was; I was in fact deputy Chief Whip of the coalition Government when the Leveson committee was set up, when it then reported and when these measures were put through Parliament. I saw rather more of the machinations surrounding this than was perhaps healthy for anyone, but it is disappointing and more than a little depressing that we are back here again debating it today.
I remember the Thursday afternoon when these amendments were tabled. It was the point when collective responsibility had broken down. There was no agreement between my party and the Conservatives and in fact I was up in the Public Bill Office ready with the amendments to be tabled subject to agreement with other parties, and to get that agreement more time was necessary. Spurious points of order were raised, there was a somewhat spurious Division on the House sitting in private, and I think the hon. Member for West Ham (Lyn Brown), who was then in the Opposition Whips Office, went to extraordinary lengths to ensure the Lobbies were not cleared; I will be no more specific than that.
I remember that over the course of the following weekend there was a change of heart by the then Prime Minister, and I remember then the way in which matters proceeded on the basis of an all-party deal. I thought that would be the end of the matter, and I am afraid to say that I see the fact that it is not the end of the matter and we are back here today as something of a breach of good faith on the part of the Conservative party.
But more than all the parliamentary and intra-Government shenanigans at the time, the thing I remember most clearly, and will never forget, is meeting the parents of Milly Dowler at the time when we set up the Leveson inquiry and giving them the solemn pledge that whatever Leveson said was necessary, we as a Parliament would do. We set up Leveson for a reason, and we implemented it for a reason. The reason was, as the hon. Member for Rhondda (Chris Bryant) has said, that it was necessary to take this place out of press regulation, and that is what pains me more than anything else about what we have heard from the Treasury Bench today, both from the Minister and earlier from the Secretary of State for Culture, Media and Sport. The time for action is long overdue; there can be no more delay and no more obfuscation.
If we do continue and if we do revisit this, as the hon. Member for Tonbridge and Malling suggested, we will not just be breaching faith between ourselves as political parties; we will be breaching the acts of good faith and the commitments we made to the parents of Milly Dowler, and I am never going to be part of that.
There will be Members who feel that section 40 should be implemented immediately and others who feel that it should never be implemented, and certainly persistent questions have been asked—including by the Culture, Media and Sport Committee, which I chair, last week when the Secretary of State gave evidence to us—about when this will happen and when a decision will be made. The Secretary of State has now set out a clear timetable that says there will be a consultation, at the end of which a decision will be made.
The one clear question that must be answered from that consultation is, if the Government are minded, in response to the responses they receive to the consultation, not to implement section 40, what will be done instead. As I said when the Secretary of State made her statement earlier today, the current status quo is not acceptable; we do not yet have a robust system of arbitration and redress for the press.
That is the spirit of section 40. People may debate its wording and its consequences, but at its heart was one simple idea: that innocent victims—people who have never courted the media and never wanted to be personalities who have, through no fault of their own, got caught up in a major press story and had their lives trashed by it—should have some mechanism for redress that does not involve the expense of going through the courts, which is beyond the means of ordinary people. That is the spirit of section 40.
IPSO could go further in its pilot and reduce the cost of access to arbitration. It could also do as Sir Joseph Pilling suggested in his review of IPSO, by establishing proper guidelines for newspapers on the redress available when they have been ruled against or found against. No such guidelines currently exist. The industry could do a lot to make IPSO better. The outcome of the consultation and the review cannot be to maintain the status quo. We have to make a decision, and we have to ensure that however it is delivered, fair redress and arbitration are available for victims of the press.
I am honoured to be called to speak in the debate, and I rise to talk about Lords amendment 15. I understand that I have two and half minutes to speak, to allow my other colleague time to speak. As my right hon. Friend the Member for Wantage (Mr Vaizey) has pointed out, it is extraordinary that we are talking about the press when the Bill is actually about the security of our country. Lords amendment 15 is clearly in the wrong Bill. In the six years that I have had the privilege of representing South Dorset, I have noticed that the decisions made in this place are often knee-jerk decisions made to satisfy a public reaction that has nowadays often been fed by Facebook or Twitter, to which too many of us react too quickly.
I suspect that, over a period of time, many sensible people in this place—the majority of people here are sensible—have come to think that we cannot use the state to interfere with the freedom of the press in this country. It is mainly Opposition Members who are making this point, and I remind them again that phone hacking is already illegal. It is a criminal offence and people who commit that offence go to jail. I worked in the press for 17 years, including at national level, in radio and for local newspapers. Never once in that time was I influenced by a producer or asked to concoct a story in any way other than honestly and accurately. That includes my nine years working with the BBC. My point is that the offences that so many Members are almost ranting about are being committed by a tiny minority of the press, and that punishing everyone—as the House is thinking of doing—would be totally and utterly wrong.
This short, impassioned debate about the freedom of the press has surely proved that a 90-minute debate on a Lords amendment shoehorned into a Bill about national security cannot be the right place to make a decision as important as this one. This Bill is supposed to regulate hacking, yet the Lords are seeking to hack the Bill by putting in something completely irrelevant to the vital matters of national security that it covers. As the previous Prime Minister and the present one have said, this is one of the most important—if not the most important—pieces of legislation in this Parliament. Were I to dare criticise either of them, I would contend that the freedom of the press is even more important than some aspects of the Bill. It is absurd for anyone seriously to suggest that we can deal with this matter in 90 minutes.
I have a great deal of sympathy with the view of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) that the chilling effect of the proposals in section 40 would have a hugely negative impact across not only the national media but the regional and local media. Over hundreds of years, we have seen the good that a vibrant, boisterous and scabrous press can do, as other Members have said, and we need to preserve that. We do not need to damn it in a 90-minute debate. I hope that Members of all parties can see that this is not the right place to take such a momentous decision.
Every morning I go into my office and I open a number of documents. They are not nice reading. They usually focus on those people that want to kill us, want to rob us, want to corrupt our country or want to spy on us. This is not a subject to take lightly. This is not a subject to which to politically attach something to settle a score elsewhere. The Bill is about giving our brave men and women in the security services and the police forces up and down the country the powers to do their job, to make sure that we put away those people that pose a threat to this country.
Those men and women are watching this debate today. Instead of seeing this House debate the hundreds of amendments that this Parliament has collectively produced to reach a consensus to make the Bill something to go forward with, they see political opportunism being played out on another subject: press regulation. They do not see us discussing how we are going to protect them and society. We should not forget that.
What is important is that this Bill is not like any other Bill. This Bill is here because we have to bring it forward to replace the Data Retention and Investigatory Powers Act 2014. DRIPA has a sunset clause and will expire on 31 December. The irony of that is that if DRIPA expires, we lose the requirement that we can place on internet companies and CSPs to retain data—data that we need to catch phone hackers, to catch child killers, to put away paedophiles. That is the risk that hon. Members are taking, with amendment 15. That is what they are making us decide on. We should reject the choice that they are putting before us and focus on the good things in the Bill and what it has done to strengthen and protect our security forces to ensure that we put away the right people. We should not play politics in this House or the other place.
Lords amendment 11 disagreed to.
Lords amendments 12 to 14 disagreed to.
After Clause 8
Motion made, and Question put, That this House disagrees with Lords amendment 15.—(Mr Ben Wallace.)
Lords amendment 15 disagreed to.
Lords amendments 338 and 339 disagreed to.
Overview of Act
The Investigatory Powers Bill will ensure that the police and the security and intelligence agencies have the vital powers they need at a time of changing threats and rapidly evolving technology. It will place those powers on a clear statutory footing and achieve world-leading oversight. It will leave no doubt about how seriously we value privacy and individual rights in this country.
Let us not forget why those powers are so important. Every day, our law enforcement and security and intelligence agencies use those powers to investigate serious crime and collect evidence to convict offenders. They are particularly crucial in combating human trafficking and child exploitation. For example, in January 2009, Operation Retriever, an organised crime investigation in Derby, uncovered one of the most serious cases of child sexual abuse in recent times, involving multiple offenders and multiple victims.
During the investigation, officers uncovered an elaborate and hideous campaign of sexual exploitation directed against teenage girls who were groomed by people they thought they could trust and were driven around the midlands to houses, hotels and bed-and-breakfasts, where they were raped, often violently. One of the officers involved in the investigation described it as
“a campaign of rape against children”.
The investigation team used a combination of covert policing and communications data, such as mobile phone records, to link group members and their victims to each other, to phone handsets and to downloaded images and videos of sexual abuse taking place. In that investigation alone, 27 female victims aged between 12 and 18 were identified. Communications data evidence helped to secure the convictions of nine defendants. One of the offenders is serving at least 11 years for rape, sexual assault, sexual activity with a child, perverting the course of justice, aiding and abetting rape, false imprisonment and making child pornography. Another is serving at least eight years for rape, sexual assault and other sexual activity. Yet another is serving three years for the supply of cocaine.
Those men could still be on our streets, exploiting innocent children, without the police having access to the important intelligence that communications data provide. It is essential that we give the police the tools they need to investigate and prevent awful crimes such as these. That is what this Bill will do.
I am pleased that the Bill has commanded cross-party support, and I am grateful to all those who helped, in the spirit of consensus, to produce the Bill that we have before us. On Report, the former shadow Home Secretary, the right hon. Member for Leigh (Andy Burnham), set out his party’s position:
“We have supported the principle of a modern legal framework governing the use of investigatory powers, recognising that as communications have migrated online, the police and security services have lost capability”. —[Official Report, 6 June 2016; Vol. 611, c. 952.]
On Third Reading, the right hon. Gentleman went on to say:
“The police and security services do incredibly difficult work on our behalf and we thank them for it. Their job has got harder as both the level of the threat has risen and the nature of communication has changed in the modern world. To fail to respond to that would be a dereliction of our duties to them; it would also fail our constituents. The Bill is ultimately about their safety, the safety of their families and their privacy. I think we can look ourselves in the mirror tomorrow and say we have done our level best to maximise both.”—[Official Report, 7 June 2016; Vol. 611, c. 1148.]
The right hon. Gentleman was right. This has been a truly collaborative effort, of which both we and the Opposition can be proud. I note that the Government’s approach has attracted support from some of the Liberal Democrats in the Lords, although Liberal Democrat Members are not present here.
We have before us today a substantial number of changes agreed in the other place—evidence of constructive engagement from all sides to further improve this landmark legislation. Let me list the main changes. Responding to concerns raised by the former shadow Home Secretary, we have replicated changes agreed in this House throughout other parts of the Bill, including protections for trade union activity and amendments to the test applied by judicial commissioners when reviewing warrants, notices and authorisations under the Bill.
We commissioned an independent review by the independent reviewer of terrorism legislation, David Anderson QC, that comprehensively endorsed the necessity of the bulk powers. As a consequence of that review, we have included provision for a technical advisory panel to advise the Investigatory Powers Commissioner and the Secretary of State on the impact of changes in technology. We have added a sentencing threshold for access to internet connection records, so that they could not be used to investigate minor crimes. We have added extra protections and safeguards for journalists, lawyers and parliamentarians.
We have addressed issues raised by the Intelligence and Security Committee by giving the Committee the right to refer matters to the Investigatory Powers Commissioner to investigate on behalf of this House; adding a requirement for the commissioner to report on thematic warrants and operational purposes; introducing a criminal offence for the misuse of bulk powers; bolstering safeguards surrounding the modification and renewal of warrants; and clarifying provisions relating to class BPD warrants, improving safeguards, and prohibiting the retention of medical records in bulk personal datasets held under class warrants.
May I put on record my appreciation for the way that the Minister listened to the representations made by the Intelligence and Security Committee in this matter? It has proved to be a most constructive dialogue and I am extremely grateful to him for having taken on board and acted on the vast bulk of the recommendations that we put forward. May I raise one matter? On the issue of thematic warrants, I know that the Government, for very understandable reasons, were unable to move on some of the safeguards that the Committee wanted. Will the Minister give an undertaking that he will keep that under review as we see how the measure operates in practice?
I am grateful to my right hon. and learned Friend for his comments. Although it would be nice to take the credit, that belongs to my hon. and learned Friend the Solicitor General, who steered the Bill through Committee, and the present Prime Minister, who helped shape and deliver the Bill. I have merely come in at the end, but will take some of the credit nevertheless.
Of course we will keep the matter under review, as my right hon. and learned Friend the Chair of the Intelligence and Security Committee asked. I do understand the concerns about thematic warrants. I know that he will keep the matter under review and the Government will do so as well.
We have made a number of minor and technical changes to improve the clarity and consistency of the legislation. Finally, in the absence of legislative consent from the Northern Ireland Assembly, we have removed measures that would have brought oversight of devolved investigatory powers in Northern Ireland within the remit of the Investigatory Powers Commissioner.
Many amendments have been accepted and we have worked together to produce the Bill that is before us today. I hope it will command the support of the whole House.
In closing, I remind the House that one of the aims of this legislation is to update investigatory powers for the digital age. It is worth contemplating briefly the consequences that would have come from failing to achieve that aim. Police forces across the country are increasingly struggling to pursue investigations because they cannot uncover crucial information as criminals’ activity moves online. Alan Wardle of the National Society for the Prevention of Cruelty to Children told the Public Bill Committee that
“the police’s ability to investigate and prosecute some of the high-profile crimes we have seen in recent years—online grooming of children and the number of people who are viewing illegal images of children online, which has grown exponentially—is increasingly dependent on communications data. I think it is vital that this Bill ensures that the police have the powers and capabilities to continue to do that.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 34.]
Let me give an example. In 2012, a Cambridgeshire constabulary investigation into sexual exploitation of a number of vulnerable children in Peterborough relied heavily on communications data. The operation resulted in sentences for 10 men, for a total of 114 years and nine months, covering the offences of rape, sexual activity with a child, inciting child prostitution and making indecent images of children. Call data were used to identify victims and offenders, and allowed investigators to establish links between them. The police were able to demonstrate call patterns linking the offenders with each other and with their victims. Subscriber data were obtained to attribute devices to offenders, and location data were used to demonstrate the movements of the offenders.
If those communications had been made using internet-based telephone services, rather than traditional phone calls, it is likely that police would not have been able to successfully disrupt this awful activity. The Bill goes a long way towards plugging this capability gap. In doing so, it safeguards the most vulnerable in our society, and it gives victims of crime a greater chance of achieving justice. That is why the Bill is so important.
Like the Minister, I came to the Bill towards the end, but I am happy to claim credit just like him. Let me say right at the beginning that the Bill has enjoyed, and continues to enjoy, cross-party support, but the House will forgive me if I put on record some of the reservations still raised by important stakeholders.
The first thing I would like to remind the House of is that there is a case before the European Court of Justice that involves the Home Secretary. It is brought by, among other distinguished persons, the deputy leader of the Labour party, my hon. Friend the Member for West Bromwich East (Mr Watson). It relates to the predecessor legislation to the Bill—the Data Retention and Investigatory Powers Act 2014. It seems clear from the interim judgment delivered by the advocate-general on 19 July this year that key sections of DRIPA will be struck down. It is clear that the Bill has even more widely drawn powers and has fewer safeguards and mechanisms for judicial oversight. The logical conclusion —we cannot say at this point what will happen—is that the powers in the Bill may well be among the shortest-lived in parliamentary history, as they may be struck down at the European Court of Justice, and that court proceedings would almost immediately follow Royal Assent.
Among the issues that have been raised with us during the passage of the Bill by stakeholders are access to internet records and the nature of the judicial safeguards; the protection of data, and the rights of journalists to protect their sources; the lack of powers to refer issues to the Investigatory Powers Tribunal; and insufficient checks on the sharing of data between agencies. There is no right of disclosure to the target and not necessarily a duty to provide information to the service provider. There is also the concern—it may be a theoretical concern, but it is a real one for many stakeholders—about the potential abuse of these investigatory powers by state agencies.
A wide number of interest groups and stakeholders have told Opposition Members that the powers in the Bill are perhaps a little disproportionate in relation to the objectives. The Society of Editors, the National Union of Journalists, with the backing of the TUC, and many others concerned with the freedom of the press have raised valid and important objections to the Bill, which, despite the best efforts of Members on both sides of the House—particularly my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer)—have not been fully addressed in the parliamentary process. Among the issues that have been raised with me is the ability of journalists to protect their sources.
Another concern, which should also be a concern for Members, is the protection of whistleblowers, who have played an important role in public life, whether at Addenbrooke’s or at other hospitals. The concern is that public bodies, by being able to identify internet records—without, as we know, examining the content—may be able to identify the whistleblowers. There is a measure of judicial oversight. However, many stakeholders have said to us that judicial oversight of data access, gathering and retention is not as strong as they would like. The absence of review proceedings has been raised with us as another troubling aspect of the Bill.
Does my hon. Friend agree that despite these reservations, the almost 300 amendments that the Government were forced to table on Report give us much greater safeguards in the exercise of these powers and a much greater capacity to scrutinise whether they are being used properly, with clear avenues for challenge where people are tempted to misuse them, all of which was absent before these changes?
I am grateful to my hon. Friend for his, as usual, very wise observation. There is no question but that the amendments that the Government have been forced to table, and the work of Members on both sides of the House, have made this a much better Bill than the one that was originally presented to this House.
It is not a question of being forced. The hon. Lady may recall that this measure was subject to a Joint Committee on the draft Bill. There can be no Bill in recent memory that has had more scrutiny than this one. Will she also note clause 232, which establishes a review of this measure after five years—a most unusual mechanism for a Bill of this sort—and give the Government credit for doing everything in their power to reconcile the need to protect our liberties with the need to protect the press?
Right at the beginning of this debate, I made a point of acknowledging the very hard work of hon. Members on both sides of the Chamber, including hon. Friends of mine, but perhaps the hon. Gentleman was not here at that stage. The first thing I did was to acknowledge the diehard work of Members on both sides of Chamber. There is no question but that this is a better Bill than the one that was originally presented to us. We are very grateful, and, more importantly, the stakeholders are very grateful, for the possibilities for a review, but I would not be performing my role as a member of Her Majesty’s Opposition if I did not put on the record the reservations that still exist among some of our stakeholders.
A number of stakeholders, campaigning groups and other bodies have expressed their continuing dissatisfaction with elements of the Bill. They include Amnesty International, Article 19, Big Brother Watch, the Centre for Investigative Journalism, Don’t Spy On Us, English PEN, Index on Censorship, Labour Campaign for Human Rights, Liberty, the National Union of Journalists, OpenMedia, Open Rights Group, PEN International, Privacy International, Scottish PEN, the Society of Editors and the World Wide Web Foundation. In addition, I have held meetings with the TUC and a number of other trade unions that still have concerns about this Bill. I would be grateful if the Minister explained why, despite all the efforts that have been made to improve the Bill, there continue to be concerns among such a wide array of stakeholders.
Perhaps I could pick up on some of the concerns of Liberty. We will all have had in our inboxes this morning a letter from Liberty. The concerns expressed in it are, I am afraid, simply wrong. In the third paragraph, Liberty’s policy officer says:
“Bulk powers allow for…surveillance…The much vaunted ‘double lock’ system of authorisation in fact allows the Secretary of State rather than judges to authorise warrants.”
That is incorrect; in fact, the Secretary of State and a judge will authorise a warrant. Perhaps Liberty is incorrect in some of its assertions about why it is unhappy and should look at the Bill, as amended, that has been before this House.
I have no doubt that stakeholders will look at the amended Bill, and if it returns to us from the Lords, there will no doubt be another opportunity to tease out some of these issues.
This Bill has all-party support and that is significant, because getting the balance right between updating legislation to deal with an internet and high-tech age and defending the civil liberties of subjects is very important, and this House is best placed to do that. We have been grateful to Ministers for being willing to listen to Members in all parts of the House in seeking to improve the Bill.
Privacy is an essential right in a democratic society. It is a basic civil right, protected by statute, so it must follow that any incursion into that right should be limited and carefully considered. I want to make three short points to show that, through the passage of the Bill through this House, that necessity for considered judgment has been respected.
First, a significant amount of information
“was given when the Bill was first tabled…including more information about the security services than we have ever seen in parliamentary papers.”—[Official Report, House of Lords, 11 October 2016; Vol. 774, c. 1797.]
Those are not my words, but the words of the Liberal Democrat peer Lord Carlile during last month’s debate in the other place.
Secondly, as the Bill has passed through the House and through Committee, the Government have listened. Again, that is not my view, but that of Lord Janvrin, the Cross-Bench peer who opened the debate in the other place by stating that the
“changes have introduced significant improvements in the protection afforded to privacy.”—[Official Report, House of Lords, 11 October 2016; Vol. 774, c. 1797.]
Thirdly, this is a Bill that
“stands not only for transparency but for the introduction of significant new safeguards”,
which is a view expressed by David Anderson in paragraph 1.20 of his most recent report on bulk powers.
It is right that we think carefully when we look to limit the right to privacy, and this Government have done so. Importantly, we must also remember why we are passing this Bill. We are doing so to protect and ensure the safety of our citizens from illegal acts, including serious crime, and to fight international terrorism; and we are doing this in a fast-moving environment where we have to keep pace with technology.
Andrew Parker, the head of MI5, told The Guardian this morning that the number of terror plots thwarted in the past three years stands at 12. He said that
“the tempo of terrorist plots and attempts is concerning and it’s enduring. Attacks in this country are higher”
than he has experienced in the rest of his 33-year career at MI5. The Bill’s provisions are designed to ensure that our security services have the tools that they need to protect our citizens from those attacks.
David Anderson wrote in his report, which was published in August:
“The bulk powers play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield. Where alternative methods exist, they are often less effective, more dangerous, more resource-intensive, more intrusive or slower”.
The Bill strikes a balance between privacy and security, and it does so because the Government need the tools to fight external threats to the nation. Those tools ensure our safety and our freedom.
Unlike the Minister and the shadow Home Secretary, but like the hon. and learned Member for South East Cambridgeshire (Lucy Frazer), I have been with this Bill since the beginning and it has been an interesting journey. As I said earlier, much was promised from the Lords when the Bill left this House, and, as the shadow Home Secretary has said, people had considerable concerns at that time about its intrusion into civil liberties and the security of data.
It is a matter of regret that the Lords amendments as a whole have not lived up to expectations. However, some improvements have undoubtedly been made in the safeguards afforded by the Bill, as a result of Government amendments in the Lords. Although the SNP does not believe that they go far enough, we will support them because they improve the safeguards. The Minister has listed some of them. I am particularly happy with the taking up of the recommendation for a technical advisory panel; the imposition of some restrictions on access to bulk personal data sets; and the inclusion of the threshold for internet connection records. I also particularly welcome the Government amendments to clause 233, to ensure that the Scottish Government will be provided with the means to engage with the work of the judicial commissioners relating to the devolved powers in Scotland.
I am pleased to note that the hon. and learned Member for Edinburgh South West (Joanna Cherry) and I have made similar sartorial choices today. Although we disagree on many other things, it seems we agree on the important things. Does she agree that the legislation is essential, because without it the expiration of existing legislation will create a legal vacuum?
I agree that the legislation is essential. The SNP believes that it is important to give the security services and, indeed, law enforcement necessary and proportionate powers. I welcome, as I have said repeatedly in this House, the attempt in the Bill to codify the law and to provide an enhanced oversight regime. However, I will not demur from the position that I have held throughout, which is that in some respects the Bill does not provide sufficient safeguards.
The SNP and many other stakeholders mentioned by the shadow Home Secretary remain very concerned about allowing significantly unfettered collection of, and access to, communications data including internet connection records. We also oppose far-reaching bulk powers to acquire the personal and private data of our constituents when a proper case for the necessity and proportionality of those powers has yet to be made.
I consider it a matter of deep regret that the review of bulk powers by David Anderson, QC reported not to this House, but to the House of Lords. This House—the democratically elected and accountable Chamber—has not had an opportunity to debate that review. It is an excellent review as far as it goes, and I would not dare to undermine much of what it says. It is what is missing from the review that is important. It makes out a case that bulk powers can be of use to the state, but it does not address the necessity and proportionality of those powers. Those matters are yet to be addressed, and we will not get to debate them here. As the shadow Home Secretary said, they are very likely to be the subject of litigation in the future, and they are likely to be addressed by courts in the United Kingdom and in Europe—for as long as we have the sense to remain part of those European systems.
On the question of proportionality, does the hon. and learned Lady agree that the proposals must be put into some sort of context? As Lord Rooker pointed out yesterday, the problem is that we have a commercial sector with a large number of commercial providers who are busy harvesting data all the time in order to advertise things to us. Since the powers that the state is taking to itself are similar in some respects, it is important to bear that in mind when trying to ensure that we have some level of proportionality.
I agree with the hon. Gentleman that at some point the House needs to look at the mass harvesting of data by private companies, but there is a big difference between a private company harvesting personal data and the state doing so. A private company does not have the coercive power of the state, and that is the crucial reason why the Bill must be scrutinised so carefully.
It is a matter of the deepest regret that the review on bulk powers did not report to this House and has not been scrutinised in this House. I would not wish the SNP’s position on the Bill to be portrayed as irresponsible, because it is not. It is an attempt to make sure that the Bill fulfils its purpose while remaining lawful and proportionate. As has been alluded to during this debate, the Scottish Parliament has given legislative consent to the consolidating and enhanced safeguard provisions in the Bill, so far as those matters fall within its legislative competence. If Members care to read the terms of the legislative consent motion, which I do not believe was opposed by anyone in the Scottish Parliament, they will see that concern was reiterated about the potential impingement on civil liberties by internet connection record collection and bulk data collection.
I want to correct something that the Minister said about Liberty. Liberty has scrutinised the Bill in detail and provided detailed briefings—one might not agree with them all—on every aspect of the Bill. It is unfair to say that Liberty is mistaken about anything. Liberty is quite correct to say that, in reality, all that the double-lock system means is that a judge will check that the correct procedures have been followed; the Minister will still make the initial decision.
In previous debates, I have said that I would not use the phrase “mass surveillance”, because it is a bit too broad, and I have instead talked about suspicionless surveillance. That is the problem with the Bill: SNP Members and many others with concerns about the Bill believe that surveillance should be targeted and based on suspicion. There is a deal too much suspicionless surveillance in the Bill, even as amended.
I listened very carefully to what the hon. and learned Lady said about the double lock. Surely the point is that where the judge has the final say, authorisation will not be granted. Will not that fundamental change create the balance that both she and I want?
I do not accept that the Government have gone as far as some of us would have liked them to go on the double lock, which is by having full-blown judicial warrantry with the power to look at the merits as well as at the process. However, I accept that this is an improvement on what was originally in the Bill, and its inclusion is a great tribute to the hard work that was done by me and my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands), as well as by Labour members of the Committee. If there had not been such root-and-branch opposition, many of the Government amendments that have finally been passed in the Lords would not be with us today.
We are all keen to claim the credit, but let us not forget that the Government’s position from the outset was to have a double lock. This important change is very much the result of Government initiative, as well as of the good intentions of Opposition Members.
I will make a little progress, and then give way again, because I do not want to take up too much time.
During the Bill’s passage, SNP Members were pleased to offer our support to the Labour party on its amendment to protect trade unionists going about their lawful activities, but what about protections for other activists and campaigners going about their lawful activities and what about non-governmental organisations and whistleblowers? We should not have unjustified spying on trade unionists, and we should not have unjustified spying on other activists either. Whistleblowers can sometimes be very inconvenient to the Government and to the private sector, but they fulfil an important function and the Bill contains insufficient protection for them.
On the protection of journalists, it is true that significant amendments have been made in the Lords, but it is important to put on the record today that journalists have continued concerns about the provisions in the Bill. They feel that safeguards for journalistic sources should apply across the various powers in the Bill, rather than in their current limited form.
In parallel, although great progress has been made in the Lords on the question of legal professional privilege, some in the legal profession still have concerns about the way in which the Bill approaches it. The way the Bill is drafted may have undermined the central premise on which legal professional privilege is based. However, credit where credit is due: significant progress has been made. I spoke this morning to the Law Society of Scotland, which recognises that the Government have come a long way but is still concerned about these somewhat controversial measures and is very anxious to have post-legislative scrutiny of how legal professional privilege will work in practice.
The hon. and learned Lady will agree, first, that legal professional privilege has for the first time been averred in legislation, which is very important, and secondly, that further amendments made in the Lords—they were approved by Members such as Lord Pannick—now deal with situations in which legal professional privilege material has been obtained inadvertently. We are now covering even more areas in a circumscribed way, and creating the sort of safeguards that I know she wants.
I read with interest the debates in the Lords about legal professional privilege. I noted carefully the approval granted to the measures by Lord Pannick, but I also noted that Lord Paddick made the point that the Bar Council of England and Wales is still not entirely happy about the provisions. That is a matter for the Bar Council, but we should adhere to the Law Society of Scotland’s suggestion of careful post-legislative scrutiny of how legal professional privilege will work in practice.
The two huge concerns I still have about the Bill relate to internet connection records and bulk powers. I have already spoken about the limitations in how we have dealt with the bulk powers review and the fact that, in my opinion and that of many others, it does not deal with the issues of necessity and proportionality.
On internet connection records, I welcome the limited safeguards introduced by the Lords, in particular, the threshold increase on serious crime, judicial approval for data retention notices and prohibition of the retention of third-party data, which we were quite agitated about in Committee. But it is a matter of regret that the Bill still includes provisions dealing with the collection of internet connection records that go beyond anything that any other western democracy has on its statute book and that, as the shadow Home Secretary said, may be of dubious legality.
The fight for our civil liberties concerns about the Bill has been lost in this House, but, as the shadow Home Secretary suggested, it is likely to continue in the courts. Liberty is representing the hon. Member for West Bromwich East (Mr Watson) in a legal challenge to existing surveillance laws. As the shadow Home Secretary said, the Government have ignored the opinion of the advocate-general in the Court of Justice of the European Union on these issues, which was that current provisions lacked vital safeguards. To my mind, that means that when this Bill becomes law it will be open to immediate challenge.
The Bill is certainly the better for its passage through the Lords, although it pains me slightly to say that, as someone who does not approve of the House of Lords—not because I do not approve of a second Chamber but because I think that it should be democratically accountable in some way. However, I do not believe that what was promised of the Lords, and expected by some on the Opposition Benches, on the protection of civil liberties has come to fruition.
It is a matter of the greatest regret that peers supported the internet connection record powers just hours after the Investigatory Powers Tribunal had ruled that the security agencies had been unlawfully scooping up personal confidential information on a massive scale for more than a decade. I was repeatedly told regarding my objections to the Bill that our security agencies are the best in the world and never break the law. I suspect that it is close to the truth that the British security agencies are, if not the best, among the best in the world; but they do sometimes break the law. No one is infallible. We must have safeguards that are real. It is noteworthy, and an indication of the inadequacy of the scrutiny of the Bill that, only hours after the Investigatory Powers Tribunal ruled that unlawful action had taken place, the Lords supported the provisions on internet connection records in their totality.
It seems that the battle has been lost in this House. But given the very real concerns I and others have about the lawfulness of aspects of the Bill, I suspect the battle may be won elsewhere.
This landmark legislation enables our security, intelligence and law enforcement services to continue the intelligence gathering, analysis and code-breaking that are essential for the security of our country in a digital age. I was pleased to support the Government on Second Reading, and am even happier to do so today.
The Investigatory Powers Bill has been subject to intensive scrutiny. Along with many Members in the Chamber—including my hon. Friends the Members for North Dorset (Simon Hoare) and for South West Wiltshire (Dr Murrison), my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) and the Solicitor General—I was privileged to sit on the Committees for that scrutiny. I was a member of the Joint Committee responsible for pre-legislative scrutiny of the draft Bill. We considered 1,500 pages of evidence, interviewed numerous experts and campaigners, and made 86 recommendations to the Government.
Following that, there was a refreshingly collaborative cross-party approach during the Bill’s passage through Parliament. The Bill has benefited from the expertise and constructive criticism of many hon. Members, including the then Labour party spokesman on the issue, the hon. and learned Member for Holborn and St Pancras (Keir Starmer), a former Director of Public Prosecutions.
Throughout that process it has emerged that our intelligence and security agencies depend upon the acquisition of bulk data—that is, information acquired in large volumes and used, subject to special restrictions, to acquire vital and unique intelligence that they cannot obtain by other means. They need the power to intercept messages and will not be able to do their job without contextual intelligence, provided in the form of internet connection records.
The threats we face are rapidly changing and multidimensional. At home, overseas and online, modern terrorist groups are mercurial and elusive, deploying instant messaging, WhatsApp, email and text to avoid detection, so that the prospect of attacks such as those in Paris and Brussels happening here in the UK is a strong possibility. Our intelligence services are regularly working to thwart plots against the UK—there were seven in 2015—directed by terrorists in Syria and inspired online by Daesh’s intricate use of social media. Meanwhile, paedophile rings use secret Facebook groups to share indecent photos. The police are constantly trying to trace vulnerable missing people. Privacy settings and encryption, while empowering, enabling and essential for the law-abiding citizen, are abused by serious fraudsters and others to create a cloak of invisibility for the worst misdemeanours. These networks are bewildering and often sourced by companies based overseas, placing them increasingly beyond the reach of the police and security services. As that threat evolves, so must our capabilities.
I support the Bill because it includes provisions that oblige internet and phone companies to store internet connection records of websites visited for 12 months. It enables the security services and police to intercept and track electronic communications and mount IT attacks, known as equipment interference, under a warrant authorised by the Home Secretary and an independent judge. It empowers our services to access and analyse bulk data, a tool that has become more important than ever before.
Critics argue that the Bill is disproportionate. They say it goes too far and that the powers avowed are unnecessary. In doing so, they misunderstand the nature of modern security and law enforcement. Without access to communications data, the National Crime Agency would not have had the evidence to prosecute paedophiles who had been visiting websites with indecent images of children. Without interception intelligence, MI6 could not have detected and disrupted numerous plots to attack the UK being planned by individuals based abroad. Without access to bulk data, GCHQ would not be able to uncover cyber-attacks against the UK.
I can see why, in the post-Snowden era, conspiracy theories abound. However, they are unsustainable in this context. For these powers, while wide-ranging, are transparent and subject to robust safeguards. First, multiple independent reviews, by David Anderson, QC, the independent reviewer of terrorism legislation, the Royal United Services Institute and the Intelligence and Security Committee, have concluded that our intelligence agencies are categorically not engaged in mass surveillance. The tools are used scrupulously and are subject to strict checks and rigorous oversight.
Secondly, the Bill creates a completely new system of warranting. A double lock on ministerial authorisation of warrants means that both judges and Ministers will consider the evidence and merits of granting permission for such powers to be used. Only where it is necessary and proportionate will a warrant be issued. It has been some time since I hung up my wig and gown, but any lawyer will say that the level of scrutiny imported in the wording of the Act is critical. We are not looking at Wednesbury unreasonableness, but a higher level of scrutiny —an anxious level of scrutiny involving proportionality.
The test for proportionality under the ECHR is set out in a four-stage test. First, the judge will ask themselves whether the objective of the means is sufficient to justify a limitation of the right. Secondly, are the means rationally connected to the objective? Thirdly, could a less intrusive measure be used to achieve the same objective? Fourthly, the decision maker will balance the effect on rights against the importance of the objective. That is trite law, but it is very significant because it means that a considerable level of scrutiny will be employed to analyse whether the warrant is justified.
In our evidence sessions, Professor Christopher Forsyth, professor of public law at the University of Cambridge, said that this test was appropriate and that the Secretary of State and the judicial commissioner are assessing important aspects of the warranting process. Importantly, there will be different considerations to take into account. For example, in a diplomatic setting, it is not appropriate for the judge to have all the decision-making power, for there might be extraneous issues that are not within the mind of the judge that need to be taken into account.
Transparency runs through the Bill. All the powers are already legitimised by Acts of Parliament, while article 8 of the Human Rights Act acts as a limit on the level of intrusion into someone’s private life. Warrantry is scrutinised and reviewed. The Intelligence and Security Committee, independent reviewers and the judiciary through the independent commissioner and the Investigatory Powers Tribunal all provide challenge and supervision. Trust is the golden thread running through the viability of the new legislation. Some things necessarily need to remain secret, but notwithstanding that need for secrecy, the public’s trust, a sound legal basis and opportunity for impartial challenge are important for ensuring long-term robustness.
Finally, I would like to share some of my thoughts on privacy. As threats and capabilities evolve to meet the pace of technological change, so must our notions of privacy. The more we live our lives online, the more we routinely give up our privacy. As the hon. and learned Member for Edinburgh South West (Joanna Cherry) said, supermarkets, search engines and mapping devices all track our shopping choices, our interests and our movements, and use the data for commercial purposes. Every time we click “agree” to the small print on these ubiquitous services, we make a concession, and we allow our data to be gathered by private companies.
Critics of the Bill argue that the intelligence and security agencies’ acquisition and use of such data is a disproportionate violation of human rights, despite its national security purpose. Yet every day, in myriad contexts, we all willingly sacrifice our privacy. The more interconnected we choose to be, the less we can pray in aid of absolute privacy. These days, the terrorists, the paedophiles and the serious fraudsters scheme online. Technology that empowers us also empowers them. Yes, we want world-class encryption, but we also want world-class security.
I am proud to support this Bill as a symbol of my trust—my trust in the skill and restraint of the unsung heroes who live their lives in the shadows: the code breakers, the agents, the investigators and the detectives who work day and night to protect us. Subject to weighty checks, these powers epitomise the duty incumbent on all of us as elected Members—the duty to protect the safety of those who put us here and to prevent the threats that we can instead of turning the other cheek and hoping for the best.
I am pleased to follow my hon. Friend the Member for Fareham (Suella Fernandes) and to speak in support of the Bill.
In March 2016, David Anderson, QC suggested that this Bill
“charts a bold route forward—and gets the most important things right”.
He went on to say that it
“restores the rule of law and sets an international benchmark for candour.”
He suggested at that time that some matters remained to be resolved, but as the Government’s support for these Lords amendments demonstrates, there has been cross-party co-operation and support both in this House and in the other place. The Bill is all the better for it.
This relative consensus is well demonstrated by the remaining amendments, just rejected, relating to press regulation. There were, of course, concerns prior to my election to this place, that a Bill of this type could be construed as a snoopers’ charter. The fact that we have just had a debate on Leveson speaks well of the progress made on this Bill. The fact that we have got to this positive position is, in my view, in no small part due to the Government’s acceptance of suggestions made across the political divide and their taking of the three independent reviews as a starting-point for this legislation.
It is worth considering that the first report, the Anderson report, called for a new law that would be both comprehensive and comprehensible. The second report, from the Intelligence and Security Committee of Parliament, said that the
“legal framework has developed piecemeal, and is unnecessarily complicated.”
That, it said, had resulted in a
“lack of transparency, which is not in the public interest.”
The third report, produced by the Royal United Services Institute, called for a
“radical reshaping of the way that intrusive investigative techniques using the internet and digital data are authorised”,
and said that it should be
“subject to judicial scrutiny”.
The Bill delivers on all those fronts. It gives our law enforcement and intelligence agencies the power that they need to keep us safe. It brings together all the powers that are already available to those agencies before they are due to expire following the judicial review of the Data Retention and Investigatory Powers Act 2014, and gives them additional powers to catch up with new technology and the web. It introduces a double lock for the most intrusive warrants, providing judicial oversight and creating an investigatory powers commissioner. It not only delivers comprehensive legislation with safeguards, but gives the security agencies the power to keep up with technology that is being used by those who seek to do harm to our constituents.
That takes me back to the words of David Anderson, QC. Last month, in Strasbourg, he spoke to the Committee on Legal Affairs and Human Rights, a Committee of the Parliamentary Assembly of the Council of Europe—of which I am a member—about these powers and about the threat posed by terrorists across Europe. During the same session, the threat was brought home most powerfully by another speaker. This lady, a Parisian, had lost her daughter to the terrorists who were responsible for the Bataclan massacre in Paris. Her words, and her pain, were incredibly moving for all who listened. She demonstrated to us how difficult her life had become, and also the terror that her daughter had experienced in her final hours. That brought home to me the need for us in this place to do everything we can to ensure that we never have to hear testimonies like that from our constituents across this nation, and it is on that basis that I shall be very pleased to see the Bill become law.
I wish to place on record our gratitude to the Labour party, the Liberal Democrats, the Scottish National party, and the Opposition Front Benchers—the right hon. Member for Leigh (Andy Burnham) and the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and, in the other place, Lord Murphy of Torfaen and Lord Rooker—for their contribution to making the Bill what it is today. We must ensure that it proceeds in a spirit of consensus, and I therefore approve of the provision in clause 232 for a review of the Bill in five years’ time. Obviously I must also express my gratitude to the Prime Minister, who helped to shape the Bill and to introduce the important powers that it gives our security services and police to help them to do their job.
I thank my hon. and learned Friend the Solicitor General, my right hon. Friend the Member for South Holland and The Deepings (Mr Hayes)—the former Security Minister—and the Chairman of the Intelligence and Security Committee, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). They, too, have made a considerable contribution. I also thank the SNP, including the hon. and learned Member for Edinburgh South West (Joanna Cherry), although she seemed rather cynical about the Bill in her more recent contributions. I recognise that the support of the SNP goes a long way towards the application of the Bill in the United Kingdom; it is important that we all embrace its aims.
A long time ago, in a different life, I did some of this stuff when there was no regulation, before the introduction of the Regulation of Investigatory Powers Act 2000. We are now in a much healthier place: a place with scrutiny, oversight and an understanding by all of matters that, in the old days, we did not even avow had happened. We should not underestimate the distance that we have come since days gone by. We have come a very long way since then, and I am proud of what the Bill gives us, and gives the men and women who need in to keep us safe.
Having had conversations with colleagues overseas, I know that people are envious of this Bill. We should not forget that, at this moment, there are people in Germany and France who face a much greater threat to life and liberty. There are forces of law and order that are struggling to come to terms with the modern threat, sometimes with legislation that is out of date. I think that by introducing this Bill we have brought ourselves up to date, and that we are now in a position to tackle the threat. I am grateful to the whole House, and to members of all its political parties, for supporting the Bill.
Lords amendment 1 agreed to.
Lords amendments 2 to 10, 16 to 337 and 340 to 377 agreed to.
Ordered, That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments 11 to 15, 338 and 339;
That Ms Diane Abbott, Victoria Atkins, Robert Buckland, Joanna Cherry, Nic Dakin, Andrew Griffiths and Mr Ben Wallace be members of the Committee;
That Mr Ben Wallace be Chair of the Committee;
That three be the quorum of the Committee;
That the Committee do withdraw immediately.—(Christopher Pincher.)
Committee to withdraw immediately; reasons to be reported and communicated to the Lords.