(9 years ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
The Minister of State, Home Office (Lord Bates) (Con)
My Lords, with the leave of the House, I shall now repeat a Statement made by my right honourable friend the Home Secretary in the House of Commons earlier today.
“I should like to make a Statement about the draft investigatory powers Bill and our commitment to providing a new law consolidating and updating our investigatory powers, strengthening our safeguards, and establishing a world-leading oversight regime.
We live in a digital age. Technology is having a profound effect on society. Computers are central to our everyday lives. Big data are reshaping the way we live and work. The internet has brought us tremendous opportunities to prosper and interact with others. But a digital society also presents us with challenges. The same benefits enjoyed by us all are being exploited by serious and organised criminals, online fraudsters and terrorists.
The threat is clear. In the past 12 months alone, six significant terrorist plots have been disrupted here in the UK, as well as a number of further plots overseas. The frequency and cost of cyberattacks are increasing, with 90% of large organisations suffering an information security breach last year. The Child Exploitation and Online Protection Centre estimates that 50,000 people in this country are downloading indecent images of children.
The task of law enforcement and the security and intelligence agencies has become vastly more demanding in this digital age. It is right, therefore, that those who are charged with protecting us should have the powers they need to do so, but it is the role of government and Parliament to ensure that there are limits to those powers.
Let me be clear: the draft Bill that we are publishing today is not a return to the draft communications data Bill of 2012. It will not include powers to force UK companies to capture and retain third-party internet traffic from companies based overseas. It will not compel overseas communications service providers to meet our domestic retention obligations for communications data. And it will not ban encryption or do anything to undermine the security of people’s data. The substance of all of the recommendations by the joint scrutiny committee that examined that draft Bill has been accepted.
Today’s Bill represents a significant departure from the proposals of the past. Today, we are setting out a modern, legal framework that brings together current powers in a clear and comprehensible way. It is a new Bill that provides some of the strongest protections and safeguards anywhere in the democratic world and an approach that sets new standards for openness, transparency and oversight. This new legislation will underpin the work of law enforcement and the security and intelligence agencies for years to come. It is their licence to operate, with the democratic approval of Parliament, to protect our national security and the public’s safety.
This Bill responds to three independent reviews published earlier this year: the first from the Intelligence and Security Committee of Parliament; the second from David Anderson QC, the Independent Reviewer of Terrorism Legislation; and the third from the Independent Surveillance Review convened by the Royal United Services Institute. All three reviews made it clear that the use of investigatory powers is a vital part of protecting the public. They all endorsed the current powers available to the police and law enforcement agencies as both necessary and proportionate, and they all agreed that the legal framework governing those powers needed updating. While considering those reviews, we have engaged with technical experts, academics, civil liberties groups and communications service providers in the UK and overseas. I also met charities supporting people affected by the crimes that these powers are used to investigate.
Copies of the draft Bill will be available in the Vote Office. Our proposals will now be subject to further consultation and pre-legislative scrutiny by a Joint Committee of Parliament. A revised Bill will then be introduced to Parliament in the spring, where it will receive careful parliamentary scrutiny.
As the House knows, the Data Retention and Investigatory Powers Act contains a sunset clause which means that legislation will cease to have effect from 31 December 2016. It is our intention to pass the new law before that date.
This Bill will govern all the powers available to law enforcement, the security and intelligence agencies and the Armed Forces to acquire the content of communications or communications data. These include the ability to retain and acquire communications data to be used as evidence in court and to advance investigations; the ability to intercept the contents of communications in order to acquire sensitive intelligence to tackle terrorist plots and serious and organised crimes; the use of equipment interference powers to obtain data covertly from computers; and the use of these powers by the security and intelligence agencies in bulk to identify the most serious threats to the UK from overseas and to rapidly establish links between suspects in the UK.
It cannot be right that, today, the police could find an abducted child if the suspects were using mobile phones to co-ordinate their crime, but if they were using social media or communications apps they would be out of reach. Such an approach defies all logic and ignores the realities of today’s digital age. So this Bill will also allow the police to identify which communications services a person or device has connected to—so-called internet connection records. Some have characterised this power as law enforcement having access to people’s full web browsing histories. Let me be clear: this is simply wrong. An internet connection record is a record of the communications service that a person has used, not a record of every web page they have accessed. So, if someone has visited a social media website, an internet connection record will show only that they accessed that site, not the particular pages they looked at, who they communicated with or what was said. It is simply the modern equivalent of an itemised phone bill. Law enforcement agencies would not be able to make a request for the purpose of determining, for example, whether someone had visited a mental health website, a medical website or even a news website. They would be able to make a request only for the purpose of determining whether someone had accessed a communications website or an illegal website or to resolve an IP address, where it is necessary and proportionate to do so in the course of a specific investigation. Strict limits will apply to when and how those data can be accessed, over and above those safeguards that apply to other forms of communications data, and we will ban local authorities from accessing such data.
I have announced today our intention to ensure that the powers available to law enforcement and the agencies are clear for everyone to understand. The transparency report that I am publishing today will help, and copies of that will also be available in the Vote Office. However, there remain some powers that successive Governments have considered too sensitive to disclose for fear of revealing capabilities to those who mean us harm. I am clear that we must now reconcile this with our ambition to deliver greater openness and transparency. So the Bill will make explicit provision for all of the powers available to the security and intelligence agencies to acquire data in bulk. That will include, not only bulk interception provided under the Regulation of Investigatory Powers Act and which is vital to the work of GCHQ, but also the acquisition of bulk communications data, relating to both the UK and overseas.
This is not a new power. It will replace the power under Section 94 of the Telecommunications Act 1984, under which successive Governments have approved the security and intelligence agencies’ access to such communications data from communication service providers. This has allowed them to thwart a number of attacks here in the UK. In 2010, when a group of terrorists was plotting attacks in the UK, including on the London Stock Exchange, the use of bulk communications data played a key role in MI5’s investigation. It allowed investigators to uncover the terrorist network and to understand its plans. This led to the disruption of its activities and successful convictions against all the group’s members.
I have also published the agencies’ handling arrangements relating to this power, which set out the existing robust safeguards and independent oversight. These make clear that the data do not include the content of communications or internet connection records. The Bill will put this power on a more explicit footing and it will be subject to the same robust safeguards that apply to other bulk powers.
The House will know that the powers I have described today are currently overseen by the Interception of Communications Commissioner, the Intelligence Services Commissioner and the Chief Surveillance Commissioner, all of whom are serving or former senior judges. This regime worked in the past, but I am clear that we need to significantly strengthen it to govern how these powers are authorised and overseen in the future. So we will replace the existing oversight with a powerful and independent investigatory powers commissioner. This will be a senior judge, supported by a team of expert inspectors with the authority and resources to effectively, and visibly, hold the intelligence agencies and law enforcement to account. These will be world-leading oversight arrangements.
Finally, I turn to authorisation. Authorising warrants is one of the most important means by which I and other Secretaries of State hold the security and intelligence agencies to account for their actions. In turn, we are accountable to this House and, through its elected representatives, to the public. As the House knows, the first duty of government is the protection of the public, and it is a responsibility this Government take extremely seriously. While there was a good deal of agreement in the three independent reviews I have referenced, all three reached different conclusions on the question of who should authorise interception warrants. The Intelligence and Security Committee supported authorisation by a Secretary of State; David Anderson said judges should carry out the authorisation; and RUSI said the authorisation of warrants should have a judicial element, but also recognised the important role of the Secretary of State. I have considered the very good arguments put forward by the three reviews. My response is one that I hope the House agrees will provide the reassurance of both democratic accountability and judicial accountability.
As now, the Secretary of State will need to be satisfied that an activity is necessary and proportionate before a warrant can be issued. But in future, the warrant will not come into force until it has been formally approved by a judge. This will place a double lock on the authorisation of our most intrusive investigatory powers: democratic accountability, through the Secretary of State, to ensure that our intelligence agencies operate in the interests of the citizens of this country; and the public reassurance of independent, judicial authorisation. This will be one of the strongest authorisation regimes anywhere in the world.
For parliamentarians, we will go even further. The Bill will for the first time put into law the Prime Minister’s commitment that in any case where it is proposed to intercept the communications of a parliamentarian—including Members of the House of Commons, Members of the House of Lords, UK MEPs and the Members of the devolved legislatures—the Prime Minister would also be consulted.
The legislation we are proposing today is unprecedented. It will provide unparalleled openness and transparency about our investigatory powers. It will provide the strongest safeguards and world-leading oversight arrangements. And it will give the men and women of our security and intelligence agencies and our law enforcement agencies, who do so much to keep us safe and secure, the powers they need to protect our country.
I commend the Statement to the House”.
Lord Rosser (Lab)
I thank the Minister for repeating the Statement made in the Commons earlier today on the draft investigatory powers Bill, which the Government intend should receive Royal Assent before the sunset clause in the Data Retention and Investigatory Powers Act 2014 comes into effect at the end of next year. An important stage in the consideration of this Bill will be undertaken by the pre-legislative scrutiny committee and its findings will, I am sure, be awaited with considerable interest.
We have also had a number of different reports on this issue in the last few months including from, but by no means only from, the Independent Reviewer of Terrorism Legislation, David Anderson QC, the Intelligence and Security Committee, and the review convened by the Royal United Services Institute. All three of those reports supported an overall review of the current legislative framework for the use of investigatory powers and the replacement of legislation such as the Regulation of Investigatory Powers Act 2000.
The Anderson report was commissioned on the basis of an opposition amendment when Parliament was asked to legislate very quickly to introduce the Data Retention and Investigatory Powers Act 2014. We argued then that it was the right time for a thorough review of the existing legal framework to be conducted as we, and others, no longer felt that the current arrangements were fit for purpose. Fast-developing technology and the growing threats we face internationally and domestically have left our fragmented laws behind and made the job of our police and security services, to whom we all owe a considerable debt of gratitude, harder.
We support the Government in their attempt to update the law in this important and sensitive area, particularly since the Statement appears to indicate that the Government have listened to at least some of the concerns that were expressed about the original proposed legislation put forward during the last Parliament. However, we hope that this Statement and the draft legislation does not prove to be a bit like some Budget speeches where it is only afterwards that some of the detail proves to put a rather less acceptable gloss on aspects of some of the changes and measures proposed.
Although it is becoming something of a cliché, the need is to secure the appropriate balance between the requirement to safeguard national security and the safety of our citizens, and the requirement to protect civil liberties and personal privacy, which is surely one of the hallmarks of a democracy compared to a dictatorship. The extent to which the proposals set out in the Statement, and in the draft legislation, achieve that difficult balance is clearly going to be the subject of much discussion during the consideration of the Bill. However, the Statement indicates stronger safeguards than were previously being proposed, including in the important area of judicial authorisation, and it appears as though in broad terms that difficult balance may be about right. We will examine carefully the detail of the Bill and where necessary seek to improve the safeguards to increase the all-important factor of public trust.
The proposals set out today do not of course relate just to national security. They also have relevance to preventing serious and abhorrent crimes and apprehending those who commit them, including murder, major fraud and child sexual exploitation. In that regard, can the Minister confirm that the far-reaching powers of content interception will be used only for the most serious crimes, as applies under RIPA? The Statement indicated that the detailed web browsing of individuals will not be accessible, which we support, but will the Minister set out precisely what internet activity of an individual will be accessible without a warrant?
Clearly, vulnerability of information has gone up the agenda of public concern in light of the attack on TalkTalk. Since data retention and bulk storage were referred to in the Statement, what steps do the Government intend to take to ensure the security of bulk storage of data by public and private bodies?
The Statement referred to the change of approach on encryption from the possible ban previously mentioned by the Prime Minister, and reference was also made to communication providers and legal duties. Are the Government satisfied that they can make any such legal requirements stick against some of the largest and most popular online names, many of whom have headquarters overseas?
The Statement also referred to the protection of communications for parliamentarians. Will that protection also apply to people communicating with parliamentarians, whether on personal matters or on providing information? What protection arrangements will there be for sources of information used by journalists? The Statement said that, if it were proposed to intercept the communications of a parliamentarian, the Prime Minister would also be consulted. What in this context does “consult” mean? Does it mean that the Prime Minister would have to give his or her agreement?
The Statement also addressed the issue of authorisation, and set out a two-stage process which is clearly intended to address the twin points of accountability to Parliament on the one hand and sufficient independence from the political process on the other in order to build trust—an issue referred to by David Anderson QC in his report. What will be the powers of the judges involved in the authorisation of warrants process in view of the reference in the Statement to a warrant being “formally” approved by a judge, and will judges have to sign off warrants in all cases? Will the information made available to the judge in order to make his or her decision be the same as the information made available to the Home Secretary? Will the criteria against which the judge will make a decision be the same as the criteria against which the Home Secretary makes her decision, or will the judge have a different remit? Who, or what body, will appoint the judges who will be involved in the authorisation of warrants process? How long is it expected to take to go through the double-lock authorisation process outlined in the Statement, and what will happen if there is an emergency requiring immediate authorisation of a warrant?
One of the key themes of the report by David Anderson was that a core objective for the renewal of legislation concerning investigatory powers ought to be public trust from all sections of our community in the use of those powers by government agencies, since public consent to intrusive laws depends on people trusting the authorities to keep them safe and not to spy needlessly on them. That in turn, as David Anderson said in his report, requires knowledge, at least in outline, of what powers are liable to be used, and visible authorisation and oversight mechanisms in which the wider public can have confidence.
The Bill will go through its stages in the Commons before coming to this House. It is, of course, a matter for the other place to determine, but one can only express the hope that a Bill of this importance will have received full and proper consideration before it gets to this House, although I am sure there will be no lack of willingness in this place to make up for any deficiencies in that regard and to ensure that the powers being sought are necessary and proportionate in relation to the issues and potential dangers they are intended to combat and address.
Lord Paddick (LD)
My Lords, I, too, thank the Minister for repeating the Statement made by the Home Secretary in the other place. Clearly, we would like to be reassured by the Home Secretary’s claim that the draft Bill is not a return to the draft Communications Data Bill 2012, which the Liberal Democrats in the coalition Government quite rightly blocked, and from which this Government now appear to want to distance themselves.
There are some clear and very welcome changes proposed, including judicial authorisation of interception warrants and a promise not to interfere with encryption, but we must look very carefully at the detail of what is being proposed, particularly in relation to what the Home Secretary calls, “internet connection records”. Clearly, there has been a great deal of concern about communications service providers storing everyone’s web browsing history and handing over this information to the police and the security services. While the Home Secretary says that the proposed Bill would not allow that, I will probe very gently whether that is the case, so as to dispel concerns that this is just smoke and mirrors.
Intuitively, the Home Secretary must be right that if the police can use mobile phone data to find an abducted child, they should be able to do so if criminals are now using social media or communication apps instead of cellular data. Our concerns are: first, whether this is technically feasible; secondly, whether it is technically feasible without prohibitive costs to communications service providers; and, thirdly, whether it is possible without the risk of disproportionate intrusion into innocent people’s privacy, whether by the forces of good or by hackers such as those who breached TalkTalk’s security, as the noble Lord, Lord Rosser, mentioned.
Talking to experts, I was told that communications service providers would be unable to tell the police or the security services whether someone had used the internet to communicate, as opposed to just browsing, without storing content. This requires billions of pounds of hardware investment, and even then it may not be possible to tell the difference between browsing and communication. Determined suppliers of applications that enable people to communicate covertly could disguise internet communication as passive browsing, for example. Will the Minister say whether the Government know that it is technically possible for internet service providers to provide a record of the communications services a person has used without a record of every page they have accessed? What would be the cost to communications providers? Has a risk assessment been undertaken of the possibility that, having stored sensitive personal information, that information might be accessed unlawfully?
Finally, in 2005 the police, backed by the then Labour Government, asked for a power to detain terror suspects without charge for up to 90 days—a power that the security services did not ask for and that Parliament, quite rightly, rejected. Will the Minister also confirm whether the requirement to store internet communication records has come from the police alone or from the police and the security services?
Lord Bates
My Lords, I thank the noble Lord, Lord Rosser, for his broad welcome of this. He is right to point to the antecedents of this whole process. It rests very much in a cross-party approach. We recognise the seriousness of the problems we face. This legislation is important to see in a context. Although it is very different from the draft communications data Bill in 2012, it is part of a long string and timeline of argument and debate that we have had. All of the recommendations in the report of my noble friend Lord Blencathra’s Joint Committee on that Bill have been accepted here. More than 200 recommendations were made in the three reviews to which the noble Lord, Lord Rosser, referred. They are also reflected in the draft Bill. He is absolutely right on that.
I turn specifically to the questions that the noble Lord asked. He asked whether the serious crime threshold will still be there. The answer is yes, absolutely. Warrantry will be undertaken in the same way as it currently is. There is no change in that. Bulk storage of data is a critical issue currently being discussed with the communications service providers. That covers some of the points that the noble Lord, Lord Paddick, raised. I will come back to that. We are in constant dialogue with them. My noble friend Lady Shields, who is the Minister for Internet Safety and Security, plays a crucial role in that dialogue, as did Sir Nigel Sheinwald, who produced his report last year. That work with the industry is ongoing.
In respect of parliamentarians, there was the Wilson doctrine in 1966, which was about wire-tapping. I do not want to have a whole debate about that but it is quite interesting to go back and look at what the Wilson doctrine actually was: effectively a requirement, as I understand it, for the Prime Minister to make a statement when communications had been intercepted, at a time when it was appropriate for national security to allow him to do so. That additional element—requiring the Prime Minister to be consulted—is a very real safeguard. In terms of the appointment of judges, we are in dialogue with the Ministry of Justice, as would be expected, and also with the Lord Chief Justice, to ensure that the appointments process is done correctly and we identify the specific skills that we are looking for in the team of judges. We anticipate that about seven judges—judicial commissioners—will be required.
On the point raised by the noble Lord, Lord Paddick, about social media, what we are really getting at here—what the police and the security services are saying—is that wireless telephony, in the space of just five years, has gone from a position where a mobile phone was the way in which people communicated, to one in which they now use Skype, WhatsApp and other social media. A third of calls are made through internet service providers, and everything suggests that that proportion will increase. That is why the argument for going for the internet records—specifically which app or site they were using to communicate—is so important.
The noble Lord’s question quite rightly referred to the fact that when David Anderson did his review he said, “If the case was made”. The noble Lord is right to pick up on that point: we discussed it a lot. That is why the operational case for the powers that was put forward by the police is also being published today. It is available on the website, but I can make sure that copies are available in the Printed Paper Office, if that is helpful.
In regard to the costs of doing this, an impact assessment accompanies the Bill. That puts the cost to the industry at about £174 million over 10 years. Those costs, and the impact assessment, will be precisely the types of detail that the process of pre-legislative scrutiny should thrash out and test. I hope that it will do so.
Lord King of Bridgwater (Con)
My Lords, I start on a rather personal note by saying to my noble friend how pleased I am—I think that the House will be too—that he is still in the job that he was doing so well before the last election. The House knows the care and consideration that he gives to this extremely difficult issue. Those of us who have tried to accelerate the process to get to where he is trying to get to now recognise the tremendous efforts that he made at that time.
I think that the House had better be ready for a pretty busy July and October, because the interest in this Bill is going to be massive. If we have a joint scrutiny committee of both Houses, then it goes to the Commons and then comes to the Lords, I think that the end of the summer is the earliest we can expect to see it here. My worry all the way through has been about the delay this involves and the risks facing this country. I was struck by the fact that two speakers on the Front Benches opposite both referred to TalkTalk, as though this was an interesting new development illustrating a new problem. I wonder what else may have happened before July and October that will condition our thinking about the range and number of threats that we face. I hope that I am not being too pessimistic, but we know that this is an extremely dangerous world.
I support the introduction of judicial authorisation, but, as somebody who used to sign a number of these warrants in my executive capacity as Secretary of State, the judges will, without question, need help in the early stages in understanding some of the background issues about national security with which they may not initially be familiar.
Lord Bates
I am grateful to my noble friend. Of course, I recognise the work that he undertook, not only as chair of the Intelligence and Security Committee, which led a lot of the work on this area, but thinking back to those heady days earlier this year when we were taking through the Counter-Terrorism and Security Bill, which is now on the statute book. He is right about the urgency. DRIPA has a sunset clause of December. Sometimes I think that the House is at its best when its mind is focused. I think there is a general consensus that we need to get this in place so that those powers continue to be available and that they are strengthened and made more accountable. I believe the timetable that has been set out is quite achievable but it will require a lot of focus.
Lord Blair of Boughton (CB)
My Lords, I echo the words of the noble Lord, Lord King, about the Minister. I am very glad that he is here. He has heard all the arguments before; he is familiar with the pressure from people who have been involved in these sorts of operations. The issue that the House will have to be absolutely clear on is the matter of trust. Do the public trust the idea that these data about internet access are safe? The worst thing that could happen is that those data could be penetrated and leaked. When we and the various committees come to consider this, that aspect of the security of the data that are being retained by the state or the internet service providers will be crucial in defining whether or not the public trust what the Government, the agencies and the police are doing. Without that public trust, we fail.
Lord Bates
The noble Lord is absolutely right, of course, and brings his wealth of experience to this area. That is why David Anderson was absolutely right when he titled his report, which has been so influential on our thinking, A Question of Trust. He said that that went to the heart of it. It is also worth noting that, on page 33 of that report, David Anderson reflected some opinion poll data, which showed that there was a very high level of public trust when it came to prioritising,
“reducing the threat posed by terrorists and serious criminals”—
71% supported the initiatives that were being taken. However, we cannot take that support for granted. The transparency and openness of the process through this stage of the legislation will be important in strengthening it.
Lord Hutton of Furness (Lab)
My Lords, I think it is necessary that we take the new powers and I broadly welcome the additional safeguards that the Minister has outlined, but can I ask him specifically about the process of authorising interception warrants? Just like the noble Lord, Lord King, I have had responsibility for signing these warrants in the past, and I would like to know why the Minister and his colleagues in government have felt unable to accept the recommendations of the Intelligence and Security Committee in this regard. I believe that issues of national security are properly matters for Ministers, and I am not entirely sure that it makes sense to ask the judges to stand in the shoes of Ministers when it comes to important decisions about national security. Far from this being a double lock, it is quite clear from what the Home Secretary has said in the other place that in future it will be judges, not Ministers, who decide whether or not these warrants in relation to national security matters are going to be brought into effect. I am not persuaded that that is the right decision.
Lord Bates
In many ways, we are starting from similar positions. The noble Lord believes that the people who are accountable to the public for the decision, if it goes right or wrong, should be the ones who sign the paper. However, it was very clear through the process of the reviews, which we have listened to, and the other work that previous committees have done in looking at this matter that the level of public confidence would be strengthened if there was a judicial element to it. If there were an imminent threat, the Home Secretary would retain the right to be able to issue the warrant herself, but it would be subject to a judicial review within five days. That ability is there and the two-pronged approach is probably about the right level, considering where the public mood is at this time.
Lord Blencathra (Con)
My Lords, I am grateful to my noble friend the Minister for his kind remarks about the Joint Committee I was privileged to chair four years ago. I think we were the first to point out that RIPA was not longer fit for purpose. It is clear from the Home Secretary’s Statement, from glancing at the section headings in the Bill and from looking at the adoption of the Anderson report and the other independent reports, that this Bill is a far cry from the original Bill that we scrutinised. To me, the crucial thing is that any extraordinary powers we grant to the security services and the police are not wrapped up and hidden in some obscure clause so that we are not quite sure what we are voting for, but are set out clearly so that Members in both Houses have a chance to vote for or against them as the case may be. That transparency should reassure the public that we are giving the security services and the police the appropriate powers, approved by Parliament.
Will the Minister consider a couple of additions I have spotted at the moment? I think we need a technical advisory committee that will look rapidly for new technological or internet gizmos or whatsits and be able to recommend to the commissioners that the Bill needs to be amended. Then we need something, such as the super-affirmative procedure, to amend the Act rapidly. Otherwise we will be in the same position as with RIPA, which gets older and older and is not updated all the time. We need those changes, I suggest.
Lord Bates
My noble friend is right, but that might not be necessary. I appreciate that the Bill has only just been published and is 300 pages long, but it has been worded as far as possible to allow for future proofing of the legislation. My noble friend Lady Shields plays an important role as a Minister looking at this area with her immense technical knowledge. I personally have benefitted from that knowledge in preparing for the Statement. A final point is that we have a plethora of different powers spread across different bits of legislation and a key driver of the Bill is that it is a great opportunity to bring them into one place so that they can be subject to that kind of scrutiny. I think that that is another element that we will strengthen along the lines of what my noble friend proposed.
Baroness Ludford (LD)
My Lords, I, too, welcome the continuity and the expertise that the Minister brings, as well as his charity fundraising. Perhaps I may just pick up on a point that the noble Lord, Lord Rosser, touched on: what exactly will the judicial powers be, and what evidence will the judges have? It was suggested today that the judge will be able to reject only on judicial review principles—that is, to ensure that the procedure was correct—but will not be able to look at the substantive evidence available to the Home Secretary. Will the Minister please clarify that? Secondly, and continuing a point that my noble friend Lord Paddick made, what confidence do the Government have that all ISPs can maintain the security of data?
Lord Bates
In terms of the judicial role, the judge will have sight of the same information as the Secretary of State currently has—which is the justification. Of course, the judge will be able to subject that justification to testing and review in terms of the process and content and ask them to go back and get more if required. That is certainly what the Secretary of State does at present. Those elements will be important in strengthening that part of the process. Again, however, that can be fleshed out in the pre-legislative scrutiny.
Lord Tebbit (Con)
My Lords, perhaps I may remind my noble friend and the House that there are four parliamentarians who would have wished to engage in these debates but are not able to do so: Airey Neave, the Reverend Robert Bradford, Tony Berry and Ian Gow. I hope it will be remembered by all Members of this House that they have no human rights whatever. They were all extinguished by a lack of the intelligence to prevent their murder.
Lord Bates
My noble friend is absolutely right. We talk a lot about liberty and security but in order to enjoy our liberty we must first have security. That is what this is about. I mentioned in the Statement that six terrorist attacks have been thwarted by the outstanding work of our security and law enforcement services over the past year alone. The transparency report which I am publishing here today shows that some 299 people have been arrested in the past year on terrorism-related offences. It shows that the threat is real and the powers are necessary.
Lord West of Spithead (Lab)
My Lords, although I agree with the noble Lord, Lord King, that it is a delight to have the Minister in his post, I would have preferred to be in that post myself after the election—but that is a different issue.
This is not before time. It has taken a long time, but we should all celebrate today, as this is good news. We hopefully get rid of the old RIPA, which is discredited—not surprisingly, because it is so old—and of emergency legislation which we passed only because we got ourselves in such a muddle about this. Here is a real opportunity for us to set a gold standard in the ability to protect our people and ensure that we can track these ghastly people who wish to kill us and do us harm, but also to pay due regard to the privacy of the individual. With pre-legislative scrutiny of all the issues we have been discussing and a White Paper, and with sufficient time, there is no reason why we should not be able to do this. We have to realise that we must not delude ourselves: there are people out there who wish to kill us. We know they want to kill us, and there are a large number of them. This is a real threat. Not doing this would be madness.
I get annoyed, I am afraid, by some comments which seem to indicate that our own security forces and agencies are the bad guys and the ones who are threatening us. That is just not true. Some people use emotive language, such as “snoopers’ charter”. The emotive language I would use is that if we do not do something like this, those people are giving the people who wish to kill us a licence to kill—but let us not use emotive language and instead look at this in a balanced way. It has to be done and it is very important that it is done.
Have we really thought about some way of ensuring that there is better data protection, not just in this Bill, but more broadly? We are not as good at it as we should be, which is a real worry. We have to make sure we do it, because people are concerned when data are held anywhere. It is no reason not to do this, but we do need to have some way of making sure that is dealt with.
Lord Bates
The noble Lord is absolutely right. This is why it is important to work with communication service providers: this has to be a partnership between the industry, the law enforcement agencies and the Government to make sure that we get this right and that there is a way of doing it which is secure. He is right about the threat being real. I have heard some of the reports from meetings which the Home Secretary has had with families who have been victims of the online sexual exploitation of children. They feel exactly the same way as my noble friend Lord Tebbit feels in terms of the actions which could be taken to ensure that their children and their loved ones do not have to suffer the exploitation which they have suffered at the hands of these heinous criminals.
Baroness Jones of Moulsecoomb (GP)
My Lords, this has been described as a tidying-up Bill, and the reason for it is that the security services and the police have overstepped the mark and misused their past powers. The noble Lord, Lord Blair, talked about trust. What guarantees can the Government give that the security services and the police will not overstep these powers as well?
Lord Bates
That is one of the reasons why we have put in place a much stronger, clearer and well-resourced investigatory powers commissioner. That will also give an opportunity for cases to be brought to the Investigatory Powers Tribunal. There will be more transparency and openness there for people to take advantage of if they feel that we have got the decision wrong.
Lord Pannick (CB)
Can I press the Minister on what the Government intend by judicial authorisation? The Statement that the Minister repeated says that,
“in future, the warrant will not come into force until it has been formally approved by a judge”.
However, in Clause 19 and many other places, the Bill speaks of a judicial review test, which, as has already been explained, is a matter of assessing reasonableness and the formality of procedures. The real question is whether the Government intend that the judge will have the power to countermand the initial decision of the Secretary of State if the judge considers that the warrant is either unnecessary or disproportionate.
Lord Bates
We have stated that there is a double lock, and it is just that. Without both the judge and the Secretary of State giving their approval, it simply cannot happen. Some details are being published today in terms of draft codes of practice, and more information will be fleshed out, in co-operation with the Ministry of Justice, the Lord Chief Justice and, crucially of course, the judicial commissioners themselves, as to how this process will work in an effective and speedy way.
Lord Campbell-Savours (Lab)
If the judge, in the explanation just given by the Minister, can effectively veto the Secretary of State’s decision, where does accountability lie?
Lord Bates
Accountability lies in that it was the Secretary of State, first, who made the decision and that is then checked by a judge. That would be the element of public accountability in that circumstance, but we are talking particularly about warrants which are required in relation to intercept, which is the most intrusive form of investigation power, not necessarily the communications data.
Lord Strasburger (LD)
My Lords, shortly after being introduced to this House I had the temerity to start raising concerns about the plethora of unfit legislation covering digital surveillance powers and the ineffective controls and oversight over their use. Initially, my questions in this Chamber were met with a mixture of stonewalling by Ministers and ridicule from certain noble Lords connected to the security establishment.
Lord Strasburger
It will come. I am gratified to see that all parts of the House now recognise that the current laws are hopelessly flawed and that we need to start with a clean sheet of paper to build a fresh legislative framework to cover this important and contentious area. When I start to read this 370-page document I shall do so in the hope that the detail can live up to the billing the Home Secretary gave it a few hours ago. From listening to her replies to questions, I know already that there are several concerns, including a forthcoming deadly embrace with the industry over encryption.
Lord Strasburger
I shall save my questions for the Select Committee, but in the mean time I shall ask just one. What is the timetable for the forming of the Joint Committee and when do the Government hope to receive its report?
Lord Bates
The Joint Committee is in the process of being formed, through the usual channels. It is hoped that that will happen in the next few weeks. It is hoped that it will have produced its report by the spring and that a revised Bill, if it is necessary to revise the Bill, will then be published for consideration in the other place.
Lord Young of Norwood Green (Lab)
We talked about trust and getting the balance right in the Bill, but it works both ways. Yes, of course, the public have a right to feel confident that there will be controls on the way in which these investigatory powers are used, but they are just as concerned, as the Minister said, to ensure that we understand the very real threats to the security of this country, not just from terrorism or paedophilia, but from significant areas of crime where the internet is being used almost unchecked at the moment. It is not a question of our security services overstepping the mark; with the current legislation they do not have the ability to deal with the very real threats. When we talk about balance and trust, it is on both sides. I would welcome the Minister’s views.
Lord Bates
I totally agree—that is why the police have put out such a thorough operational case for this. It is very important that, as well as explaining the threats we face, whether they be terrorist, child sexual exploitation or financial crime, we point out that the process through which this legislation is going is almost unprecedented in its openness and transparency. What will come thereafter, should the Bill pass all its stages through the House, will be a much strengthened, much more clear and transparent approach in which we can all have trust and confidence.