(8 years, 4 months ago)
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Baroness Neville-Jones (Con)
My Lords, I return to the subject of the Investigatory Powers Bill. I support the Bill, which I believe to be strongly in the national interest. The threats against which we need this legal base for our collective protection are, sadly, of indefinite duration and, as other noble Lords have said, the situation is getting more complex, difficult and dangerous and we need the protection of the law behind us. Having said that, at the same time it is very welcome that the legislation will include further protections and safeguards that do not exist at present. That gives reassurance and helps produce the balance that we need in legislation for the future. Finally, it is important to remember that we need to get the Bill through as we have a statute on the books only until the end of the year.
The current Bill is the product of pre-legislative consultation and scrutiny in the other place, with plenty of debate and amendment. It has undoubtedly been improved for that. We should take notice of the fact that a great deal of work has been done there. It is, I think, well balanced and been made more proportionate in the course of that debate and a lot of progress has been made on contentious issues. While the House should give it the serious scrutiny that it deserves, which is one of our jobs, I hope that we can refrain from reopening issues where the other place has already done a good job. We do not need a degree of perfectionism that simply rewrites legislation in a slightly different way when the result we have already attained is good.
The Government have accepted an overarching statement of the privacy protections. That is very important and in the Bill. They have also either given or promised protections for sensitive data sources, Members of Parliament, journalistic sources, legally privileged materials and trade union activities. All of those add to the credibility of the Bill and clearly delineate where the powers apply and where exceptions have to be treated with great care.
There is also the increase in the double lock on forms of warrant, and I believe that any Home Secretary would be putting him or herself in considerable jeopardy were he or she to try to ignore the factual review of the judicial commissioner, so one really cannot argue that the power of the judicial commissioner that has already been put in place is inadequate.
My noble friend has indicated that more government amendments will be introduced as a result of debate in the other place, and our debates here will be made a good deal easier by that welcome development. We should pay tribute to the quality of debate in the other House that has led us to be able to advance the Bill in this House at an early stage.
Many noble Lords have rightly said that the Bill mostly brings together existing powers in one place, but there are some new ones, and one of them is access to internet connection records—so-called ICRs—including, as others have said, in relation to VoIP. The Government describe that power as crucial and I very strongly agree. It is necessary for us to have this technical capability. It is also an example of where previous legislation on the statute book was out of date because of technical developments. The point made by other noble Lords about the need to have legislation that enables us to deal with future technical development is important. Future-proofing is difficult; it is not easily done; but we should not pass legislation that prevents us coping with new situations. Taking a sensible stance on future-proofing is important.
I am sure that we will debate the ICR legislation carefully, and it is right that we should do so. There is the question of the authorisation regime and whether it is tight enough, and we need to know exactly what data can legitimately be regarded as forming an ICR. These are all issues that we need to look at. Among other things, service providers need to know precisely what they have to store. An important point is also to have clarity in the Bill itself over what constitutes third-party data.
I have had plenty of lobbying letters, as I am sure other noble Lords have, which raise some important issues that we will want to look at. Some of the points I have had have certainly been overegged, but in the letters I have had the service providers have generally taken a very intelligent and constructive interest in the Bill. Most of them say they welcome it, and very often they propose quite sensible ideas. Quite a lot of it focuses on whether it is right and adequate simply to have some of these safeguards spelt out in a code of practice or whether they should be in the Bill. In general I tend towards wanting to put the safeguards in the Bill.
I will say just a word about bulk powers. There is widespread questioning of why the British Government consider these powers so essential when other Governments do not think them necessary. We need to look at that carefully. My noble friend Lord King gave us some of the reasons why the Government may well be right. One does not have to believe in the erroneous assertion that collection of bulk material constitutes bulk surveillance—it does not. On the other hand, we need to be cautious about collecting a vast amount of data, which covers large numbers of individuals who are not necessarily involved. However, we do not live in a world where prior intelligence is so good that it is obvious that we can totally dispense with bulk collection in favour of targeted collection. The point is obvious. For me, the question is much more about how many categories of bulk collection are justified in the national interest. The Government have provided an operational case, and I look forward to the view and the assessment that Mr David Anderson will put forward in his forthcoming report, which will be very important to the House.
Finally, I will address something that has not been mentioned in the debate so far, which is the question of information that is outside the jurisdiction of the United Kingdom but which the agencies may need. It is quite possible—in fact, I would say that it was quite probable—that quite a lot of cases will involve data located outside the UK jurisdiction. Once the Bill has been agreed, it will give a considerable degree of confidence in UK standards of authorisation, transparency and oversight of data collection, and will lay a good base for international agreements with like-minded Governments, which would permit UK requests to be directly made to companies rather than through Governments in different jurisdictions. That will be an advance on having to rely on mutual legal assistance agreements. On this issue, I hope that we will build in the Bill a base for the international agreements that have been proposed by Sir Nigel Sheinwald as a way forward, as that will be a constructive and rapid way forward to getting the kind of information the agencies need. It is no good the agencies asking for something which turns up three months later after a legal haggle instead of being able to get at it in a timely way.
This is important legislation, and I hope that, notwithstanding the turbulence in our national politics that we have just been discussing, we will be able to apply ourselves and get it on to the statute book in good time.
Lord West of Spithead (Lab)
My Lords, I first congratulate the many people who have worked so hard to ensure that the Bill is nearly fit for purpose. Interception of communications and civil liberty are uncomfortable bedfellows but we are within a hair’s breadth of a sensible compromise. Indeed, I believe—unlike the noble Lord, Lord Strasburger—that this will be a benchmark for security legislation globally. Certainly, on talking with my old counterparts in a number of countries, I found that they also feel the same.
We live in a more dangerous world than at any time in my 50 years on the active list, notwithstanding the Cold War. It is more unstable and more dangerous. We must not forget that all the numerous terrorist plots thwarted in the UK over the last 10 years—the seven referred to by the noble Lord, Lord King, were only last year, and there were 10 while I was a Minister, so the number is a lot greater than that—were initially discovered by intercept. Intercept has kept our people safe. We clearly cannot allow terrorists, such as Daesh, serious organised crime syndicates, murderers, paedophiles and so on to exchange information, plan and operate, safe in the knowledge that law enforcement is unable to monitor or get at their activities.
I also hope—as was mentioned by the noble Lord, Lord Paddick, and the noble Lord, Lord King—that the politically loaded and seriously misleading phrase “snoopers’ charter” has been removed from our lexicon. I pay tribute to those of our security services and agencies who work tirelessly to protect our people. I have worked cheek by jowl with them over many years, and they are basically ordinary British men and women doing an extraordinary job. They are not some Stalinist or Gestapo group intent on oppressing our people. My only complaint is that too many of those at GCHQ are Guardian readers and seem to dress rather casually. Too many people in the civil liberties field see them as fascist bogeymen: they are not.
The lead-up to this Bill has been tortuous but it is needed urgently, and there was an overwhelming requirement to replace the outdated legislation and ensure the correct safeguards for our civil liberties.
What is absolutely clear is that the Bill is certainly not part of a “dangerously rushed parliamentary process”, which is what Amnesty International has said. It is the result of highly detailed scrutiny, over a very prolonged period—I suggest that it has taken longer than two years in its various guises. That was not least as a result, as was mentioned by the Minister, of the report by David Anderson, A Question of Trust; the detailed work of the Joint Committee on the Draft Investigatory Powers Bill; the independent surveillance review from RUSI; the ISC study; the work of the Science and Technology Committee; and so on.
The Bill has been pored over in the other place and the Government are to be congratulated on their willingness to accept so many necessary amendments. There are still a number of areas where the Government have promised changes, and we need to wait and see what they come up with. Those include, as has been mentioned, issues that relate to protecting journalists and source confidentiality, and, as the noble Lord, Lord Pannick, mentioned, lawyer-client confidentiality.
The web is transnational and knows no boundaries. Therefore, I ask the Minister whether we are moving towards a more predictable, transparent, usable and coherent legal framework for providers overseas, as was endorsed by David Anderson QC, the Independent Reviewer of Terrorism Legislation; by Sir Stanley Burnton, the Interception Commissioner; and by Nigel Sheinwald in the study that the Prime Minister asked him to do.
I also have concerns about clarity over compliance costs, where I believe businesses will be unable to make the necessary financial planning for storing internet connection records.
From all my experience in this area, I know that equipment interference is absolutely crucial to law enforcement and our security. We need to be very wary and very careful of constraining our agencies too much in this area.
I have concerns also about authorisation and the double lock in certain circumstances, particularly political issues to do with some sort of monitoring overseas. I will be interested to see how that develops over the next few months as we debate this.
Lastly, I know from personal experience how crucial to our people’s safety bulk collection is, primarily for terrorist purposes. I await David Anderson’s review of all bulk powers with great interest, but hope that he will not try to constrain that too much. It is not about prying on all those data; it is about getting the key little points that enable us to get after the people who wish to do us harm and kill us.
We still have a way to go, but I look forward to hearing the debate in this Chamber over the next few months. We have a lot of people who know a lot about these issues. My initial impression is that this is a timely, valuable and necessary piece of legislation, which gives us the powers we need. It is infinitely better than the flawed legislation that it is replacing.
Lord Lester of Herne Hill (LD)
I, too, like the noble Lord, Lord West of Spithead, and others, welcome this Bill as a significant step towards providing a much-needed clear and transparent basis for the investigatory powers used by the security and intelligence services and law enforcement authorities. I also welcome the safeguards that it contains, some of which need to be strengthened. We must await the expert assistance of David Anderson’s report on the key issue of bulk powers. David Anderson is about the last person left in this country that I really trust on some of these issues.
I am grateful for briefing from the Law Societies of all four corners of the UK, the Bar Council of England and Wales, the Chartered Institute of Legal Executives and the NGOs, Liberty and Justice. I shall talk mainly about legal professional privilege, an issue raised some years ago by my noble friend Lady Hamwee.
It is essential that there is a powerful independent body able to ensure that the vital powers of the state and its agents are not misused. David Anderson QC, the wise and manifestly independent reviewer of terrorism, wrote in his report, A Question of Trust:
“Trust in powerful institutions depends not only on those institutions behaving themselves (though that is an essential prerequisite), but on there being mechanisms to verify that they have done so. Such mechanisms are particularly challenging to achieve in the national security field, where potential conflicts between state power and civil liberties are acute, suspicion rife and yet information tightly rationed”.
The Government’s simplification of the oversight system in the Investigatory Powers Commission is welcome. The commission should have the resources needed to improve transparency, efficiency and public trust in the vital work of the security and intelligence services. The commission needs to be properly funded and have the services of an amicus on difficult warrant applications. It is in the interests of public trust and confidence that the judicial commissioners are appointed by the Prime Minister on the recommendation of an independent appointments committee established by the Commissioner for Public Appointments. I hope that the Minister, who, I am delighted to mention, is a member of my chambers, as is the noble Lord, Lord Pannick—it is a curious, triangular situation—will be able to reply positively to these suggestions.
I turn to legal professional privilege, which has been spoken about powerfully by the noble Lords, Lord Rosser, Lord Pannick and Lord Paddick. It is a constitutional right inherent in the rule of law, which protects the individual’s right to consult a legal adviser in absolute confidence, knowing there is no risk that information will become known to a third party without the client’s clear authority. It is the right to speak safely with a lawyer, and it has been protected by our common law—and I dare say in Scotland, too—since at least the 16th century.
The mere prospect of surveillance creates the risk of a chilling effect on openness of communications with a lawyer. The accuracy of legal advice is an immediate and obvious casualty, but so is the rule of law. Without being able to discuss candidly, defending lawyers might not know about important defences open to a client. Courts may adjudicate cases on a misleading or incomplete basis. When people cannot speak safely with their lawyers, it is not only individual privacy that is affected but the administration of justice as a whole.
There is a danger of miscarriages of justice for individuals in litigation with the state. The Government may respond that there will be no unfair advantage when they monitor individuals’ meetings with lawyers, because they can maintain a Chinese wall between spies and prosecutors. But that was not the finding of the Court of Appeal in 2011, when it struck down the convictions of 20 environmental protestors whose conversations with a lawyer had been monitored by an undercover police officer, Mark Kennedy. Nor was it the finding of the Investigatory Powers Tribunal in April last year, when it ordered GCHQ to destroy illegally intercepted communications between a Libyan rendition victim, Abdel Belhaj, and his lawyer. In mishandling those data, GCHQ rightly admitted that it had broken its own rules and had broken the law.
Prohibiting the targeting of legally privileged communications does not impair the ability to bring dishonest lawyers to justice. Legal privilege attaches only to communications between lawyer and client genuinely aimed at obtaining legal advice. If the consultation is a cover for a conversation whose true aim is to further a criminal purpose, it is not protected. The Bill should forbid deliberately targeting legally privileged communications.
This may be an unnecessary academic, technical point, but I still think it worth mentioning. Reference has been made to an iniquity exception, but it is more accurately described as a constraint on the scope of the privilege. For example, Section 10(2) of the Police and Criminal Evidence Act 1984 states:
“Items held with the intention of furthering a criminal purpose are not items subject to legal privilege”.
That, I think, is the correct approach.
When compelling evidence suggests that the privilege is being abused, a judicial commissioner should be required to authorise covert information-gathering. There should be no grant or modification of a warrant likely to capture privileged communication unless there is prior judicial approval. This protection is written into the Bill in respect of journalists’ sources—see Clause 73. Legal professional privilege needs equal protection. There is also a need for safeguards to ensure that any legally privileged communications intercepted accidentally or incidentally are immediately destroyed.
Like the Joint Committee on Human Rights, I recognise the value of thematic warrants, but the Bill’s provisions concerning the possible subject matter of targeted interception and targeted equipment interference warrants are too broadly drafted. As the JCHR recommends—and I agree with it—the Bill should be amended to circumscribe the possible subject matter of warrants in the way recommended by the Independent Reviewer of Terrorism Legislation. That will ensure that the description in the warrant is sufficiently specific to enable the person unknown, but who is the subject of it, to be identified and to prevent the possibility of large numbers of people being potentially within the scope of a vaguely worded warrant. One is reminded, for those who are interested in history, of the kind of Entick v Carrington problems that were raised in the 18th century.
The JCHR has said that,
“the power to make major modifications to warrants for targeted interception, without judicial approval, is so wide as to give rise to real concern that the requirement of judicial authorisation can be circumvented, thereby undermining that important safeguard against arbitrariness”.
I agree with the JCHR that major modifications to warrants should require approval by a judicial commissioner.
The independent reviewer has said that he knows of no other country in which the Secretary of State holds responsibility for authorising police warrants; judicial authorisation is sufficient. The Home Secretary signs some 1,600 warrants each year, not including national security warrants. If the requirement of her direct approval for police warrants were removed from the Bill, she would have 70% fewer warrants to approve, giving her more time to focus on vital national security interests. That makes good sense.
As I said at the outset, I welcome the Bill and hope that it will be significantly improved, as suggested by my noble friend Lord Paddick and others in the debate. I look forward to the Minister’s response.
Lord Butler of Brockwell (CB)
My Lords, it is a great pleasure to follow the noble Lord, Lord Lester of Herne Hill. It brings back the arguments we used to have about the powers of the intelligence agencies on dog walks around Brockwell Park—which, incidentally, is not my personal estate. He was then counsel in the Spycatcher case; I was about to be Cabinet Secretary. He did not trust me then and since he says now that David Anderson is the only person he does trust, that situation clearly has not changed.
When I last spoke in the House, on the Motion of the Leader of the Opposition about the powers of Parliament and of this House, I was critical of much of the legislation introduced into Parliament. I do not withdraw that but I do not make those criticisms of this Bill. On the contrary, like others who have spoken, I commend the way in which the Government have brought forward the Bill and the way in which it was debated and scrutinised in the other place.
The Government published a draft of this Bill in the autumn. Despite the fact that preparation of it had been informed by authoritative reports from the Independent Reviewer of Terrorism Legislation, the Intelligence and Security Committee of Parliament and RUSI, the Government produced it when it was, frankly, still in the course of preparation. It was just being baked. But that was a thoroughly good thing to do because it could then be considered by a joint pre-legislative committee—on which I had the privilege of serving, under the noble Lord, Lord Murphy—by the Intelligence and Security Committee and by the House of Commons Science and Technology Committee. That enabled a large number of changes to be made and improvements to be introduced before the Bill was brought before Parliament. At the same time, the Government undertook widespread consultation with interested parties outside Parliament, including the communications service providers, which were able to give evidence to the parliamentary committees. So there was a very transparent method of preparing this Bill, which was necessary in view of its complexity.
I have read in full the debates in Committee, on Report and at Third Reading in another place. Without being patronising, I think that they show the House of Commons at its best. There were no less than 16 Committee hearings. The Government responded constructively to the Opposition and, as has been said, introduced many amendments to respond to their points. As a result, it is remarkable that the Official Opposition did not vote against the Government in a single Division.
Of course, many matters were left over for this House, and I will come on to those, but I would also like to say—seeing as I am to be followed by the noble Marquess, Lord Lothian, who is a member of the Intelligence and Security Committee—that the scrutiny has shown the strength of the mechanisms that Parliament has for considering issues of this sort. In addition to the specialist committees that I have referred to, the Intelligence and Security Committee is able to operate within the ring of secrecy around these highly classified issues, and has shown itself capable of reassuring Parliament in some areas but also of proposing additional safeguards in other areas where oversight of the intelligence agencies needs reinforcement. That has been a very valuable contribution.
None the less, as others have said, there is much work for your Lordships’ House to do. There are important issues in the Bill that still need to be determined. Part of the Government’s response to criticisms raised in the other place was to promise further consideration in your Lordships’ House. That covered such important issues as protection of legal privilege, on which the noble Lord, Lord Lester of Herne Hill, and other noble Lords spoke; further protection of journalistic freedom; the definition of crimes for which access to communications data is justified; and the whole issue of the operational case for bulk powers. On top of that, although clearly the Home Office has made much progress in discussions with communications providers about the definition of internet connection records, questions remain about both the effectiveness of those and the cost of collecting them. We must remember that hanging over the whole issue is the case brought in the European court by David Davis MP and Tom Watson MP about the retention of communications data, in which there may well be further developments during the passage of the Bill.
The intention is that this House should start Committee before the Summer Recess but not complete it. That makes sense because by the end of the Recess we can expect to have David Anderson’s report on the operational case for bulk powers, which will be central to considering Parts 6 and 7 of the Bill. This is a very difficult but very important Bill. I hope that this House can maintain the very thorough but also very co-operative and constructive tone of the scrutiny that has taken place on it so far.
Lord Lester of Herne Hill
I apologise to the noble Lord and the whole House for the hurt I have caused him by suggesting that I trust David Anderson more than anybody else. I trust the noble Lord, Lord Butler of Brockwell, almost as much.
The Marquess of Lothian (Con)
My Lords, I am sure the whole House is relieved to hear of this new-found friendship between their two noble Lordships. It is always a pleasure to follow the noble Lord, Lord Butler of Brockwell. He and I served together on the Intelligence and Security Committee in the last Parliament.
I am particularly pleased to take part in this Second Reading debate today, not least because the ISC—on which, along with the noble Lord, Lord Janvrin, I have the honour to represent your Lordships’ House—has over the past three years published two reports on investigatory powers. At the end of the last Parliament, the Intelligence and Security Committee, including the noble Lords, Lord Butler of Brockwell and Lord Campbell of Pittenweem, produced a substantial report entitled Privacy and Security: A Modern and Transparent Legal Framework. It covered in detail the gamut of the intrusive powers available to our security and intelligence agencies, and concluded that existing legislation was “unnecessarily complicated”, outdated and lacked transparency. It needed to be replaced by a modern, transparent legal framework fit for the internet age. Since that report, as well as the ones mentioned by the noble Lord, Lord Butler of Brockwell, from the Independent Reviewer of Terrorism Legislation and RUSI, the Government introduced the draft Investigatory Powers Bill. This was the subject of the ISC’s second report, which made many specific recommendations towards improving the Bill, especially in those areas relating to certain investigatory powers where the legal authorisations were opaque and the safeguards, in our view, insufficient.
This Bill is a significant step forward in clarity, transparency and enhanced safeguards. For the first time, it provides an explicit statutory footing and authorisation procedure for bulk personal datasets, equipment interference and bulk acquisition of communications data. Where authorisations and procedures already existed under RIPA, these have now, thankfully, been set out more clearly in this Bill. They will also now, under the Bill, be subject to the additional protection of judicial commissioner approval.
I readily acknowledge that the Government have engaged constructively with the ISC throughout the passage of this Bill. Several of our recommendations on the draft Bill were incorporated during its passage in the other place. We have also, helpfully and reassuringly, been provided with additional classified evidence regarding other matters raised in our report, most notably on the use of bulk equipment interference and the need for economic well-being as a ground for interception.
On the crucial operational purposes, which regulate the examination of material collected using bulk powers, we suggested that there was insufficient detail in the Bill as to how they would be regulated and managed. The Government have now committed themselves to include further detail on this which I look forward to seeing during the following stages of the Bill.
On bulk personal datasets, the Government have confirmed that they will introduce amendments adding extra safeguards where these contain sensitive data. Already, following changes in the other place, there are now welcome restrictions on the use of powers to investigate legitimate trade union activities and greater restrictions on bulk personal datasets containing medical records. These are welcome.
However, we continue to press for additional restrictions on the use of these powers in relation to sensitive personal data. I hope that we will in due course see government amendments to implement these additional protections.
Turning to thematic interception and equipment interference warrants which concerned the noble Lord, Lord Lester of Herne Hill, they also concern us in that we feel they can be drawn very widely, potentially catching a large number of people in a single warrant. These concerns have still not been completely met by the Government but the Home Secretary has told my committee that she is considering what more can be done to provide further assurance about how these thematic warrants will operate. Again, we look forward to seeing that.
The ISC still has concerns about provisions for criminal offences in relation to the misuse of powers. The Bill refers to already existing offences apparently necessary to avoid a confusing overlap. However, for the misuse of certain powers, the only criminal offence would be misconduct in public office, which, in my view certainly and in the view of others, is an old common law offence which prosecutors are often reluctant to pursue. For other abuses, the only criminal penalties would be fines under the Data Protection Act and the Wireless Telegraphy Act, almost certainly not sufficient for the most egregious cases of misuse.
This Bill has been introduced to this House in clearly better shape than when it was originally published, and for that I congratulate the Government. However, there are further improvements which can and should be made, hopefully by government amendments at the forthcoming stages of the consideration of the Bill.
At stake is the difficult balance between an individual’s right to privacy and society’s need for national security. There will, I fear, never be total consensus on that balance. While the ISC has consistently concluded that the agencies’ operational techniques are justified, we have equally been insistent on the right constraints being placed on their use. I hope that with the further revision to the Bill which will take place in this House, we will get these constraints right, without undermining the agencies’ vital work to keep us safe. That is the balance we seek to achieve. This Bill has the potential to achieve it.
Lord Murphy of Torfaen (Lab)
My Lords, it is a pleasure to follow the noble Marquess. His political path and mine have crossed on a number of occasions over the years, particularly when I had the great privilege of chairing the ISC, of which he was then a member—and still is, of course.
A number of noble Lords have said during the course of the debate—and will continue so to say—that we live in a much more dangerous world, that technologies have developed enormously over the last number of years and, of course, that the security services need new tools to deal with the new world. I pay tribute to the security services in all that they do.
Another theme that has emerged over the last number of hours, and will continue so to do, is the balance that we must have between, on the one hand, the security of the country and, on the other hand, the liberty of the citizen. Certainly I recall, when I was the Northern Ireland Secretary, that every time I had to sign a warrant for intercept—I had to do so many times—I realised that I was depriving someone of their liberty. Sometimes they needed to be deprived of their liberty, but it was in my mind all the time that I was doing a serious thing.
It is certainly the case that since the draft Bill, as it then was, was introduced in November of last year there have been a great number of changes to it. As chairman of the Joint Committee of both Houses on the Bill, I pay tribute to those Members of this House—some of whom have already spoken and some of whom will be speaking in this debate—and the other place who took part in the deliberations of the Joint Committee. I also pay tribute to Mr Duncan Sagar and his parliamentary team, who were absolutely first class in the advice that they gave us, and to the two special advisers, Martin Hoskins and Professor Peter Sommer.
It has been mentioned that some people think the Bill did not receive or is not receiving sufficient scrutiny. I reject that. The Joint Committee worked for over two and a half months, sometimes meeting three times a week. We received 1,500 pages of written evidence and interviewed 59 witnesses. At the end of all that, the committee made 87 specific recommendations to government to improve the draft Bill, the vast number of which were agreed by the Government. The recommendations included the need for codes of practice on internet connection records, on equipment interference and on bulk personal databases; a further role for the ISC; urgent warrants to be reviewed not after five but after two days; the need for the Government to justify bulk powers; and, perhaps most interestingly, that at the end of five years both Houses of Parliament would review how the legislation has worked.
After scrutiny by the Joint Committee the Bill went to the other place, and my noble friend Lord Rosser and others mentioned the changes that were made to it in the House of Commons. When I started my life as a politician a million years ago, changes to Bills were very rare. One would go to a standing committee for up to three months and it was likely one or two amendments would be accepted. I am glad to say that the Government have not taken that attitude with regard to this Bill. I pay tribute to Sir Keir Starmer, who led for the Opposition in the House of Commons, and to Mr John Hayes, the Minister for Security, both of whom worked well together in the House of Commons both in Committee and on Report.
There were substantial changes made to the Bill, as we have already heard, on issues such as legitimate trade union activities, access to medical records, how privacy should be built into the Bill as a substantial issue, and the independent review into bulk powers under David Anderson QC. All those necessary changes were made on the Floor of the House of Commons or in Committee as a consequence of both Front Benches sensibly talking to each other.
Now, further work has to be done. I think that your Lordships’ House is the place where detailed scrutiny can take place because of the expertise, the experience and the background of many of your Lordships who are not only speaking today but undoubtedly will speak in Committee and at other stages of the Bill.
We still need to look at some issues. The professions have been mentioned already by a number of your Lordships, with reference made to lawyers and to journalists. There is still work to be done on that. We look forward to David Anderson’s review, because that will give this House the opportunity to see what he says and to look further into the question of warrants. Thematic warrants, referred to by the noble Marquess, are important, too.
So there is plenty of work to be done on the Bill, but it is a Bill that is necessary for the security of our people. It needs to strike that essential balance between the liberty of the citizen and the security of the country. It is a much better Bill today than when it was introduced in November last year and I look forward to taking part in the deliberations before and after the Recess.
Lord Campbell of Pittenweem (LD)
My Lords, one of the most well-worm clichés in politics is that the devil is in the detail. On this occasion, I venture to suggest that it is more than apposite, because I cannot remember legislation in my time either in the other place or here which contained so many detailed provisions. I have the misfortune to disagree with several of my noble friends on these details, but I happen to believe that the fundamental principles which underlie the Bill—of necessity, proportionality and legality—are ones that the whole House would readily accept.
I was struck by a statement made by the Home Secretary at Third Reading in the other place. She said—and I paraphrase slightly—that the duty of government is to protect its citizens and the duty of Parliament is to hold the Government to account for the way in which they exercise that protection. These cannot be absolute values; they are essentially relative. The extent to which one may be emphasised at the expense of the other will always be a decision of fine judgment. It will always be a decision which has to be taken in prevailing circumstances. The kind of legislation introduced in the United Kingdom Parliament in either the First or the Second World War reflected what was thought to be of particular urgency, but we must be clear that what may be proportionate or necessary at one time may not be proportionate or necessary at another.
It is well accepted that the Bill must provide a proper framework with which the judgments to which I have referred can be made, but I thought that the noble Lord, Lord King, who is no longer in his place, made a very sound point about the pace of change. One difficulty about the pace of change is that it is not constant but is always accelerating. When we consider that the iPhone, or rather—I had better be careful that I do not advertise—the mobile phone that we all carry in our pockets now contains a capacity far beyond that of the computers that used to occupy a whole room in the 1960s, it illustrates just how much capability has improved and been changed, and the extent therefore to which legislation has, so far as possible, to keep pace with it.
I am persuaded that this Bill generally provides a proper framework—but, as we have already heard, more amendments have to be made. In the other place, the willingness of both sides of the House to enter into dialogue and discussion helped to produce a Bill which is perhaps not as divisive as it might have been, but has none the less left for your Lordships a variety of issues of importance which will be aired for the first time only during consideration in Committee.
On the double lock, it is still argued by some that approval should be by judge alone. With that conclusion, I respectfully disagree. Parallels with other jurisdictions are dangerous. Sometimes reference is made to what happens in the United States, but it is important to remember that judges in the United States are elected or appointed not just because of their legal ability but because of their political affiliation. That is true in the Supreme Court—hence the controversy which surrounds the choice that Barack Obama may have about the appointment to a vacancy on the Supreme Court Bench.
I am thoroughly convinced that judicial review, or the application of its principles, is more than appropriate. Judicial review is a well-established process both in the common law and in the law of Scotland. Judges are well used to applying its principles and the law, as the Advocate-General will certainly be aware, has developed considerably since the case which gave rise to the Wednesbury principle was decided many generations ago.
My belief that the initiation of approval should rest with the Home Secretary seems entirely justified because there will be occasions when the mere granting of a warrant will have political implications. That may be so particularly if there is any question of activity authorised by a warrant taking place abroad. In those situations, the decision being of a political nature, I feel that no judge would be enthusiastic about the proposition that they and they alone should have responsibility for these matters—it would be entirely inimical to the approach that judges take in our system.
I understand the motive behind the amendment made in the other place which provides that the judicial commissioner has to take particular care to apply the general provisions on privacy which are now a centrepiece of the Bill. I suspect that that is an unnecessary belt when there were already adequate braces, because I cannot imagine any judicial commissioner worth his or her salt who would not, in interpreting a particular section of the Act, take account of all the rest of the terms of the Act—indeed, it is a fundamental principle of statutory interpretation.
As I have said already, the Government have shown remarkable willingness to accept and adopt proposals for amendments, particularly in relation to the activities of journalists and the relationship between lawyers and their clients.
I will finish by saying a word about bulk powers, which have been and remain controversial. I began by thinking that the jury was out, but it would be more correct to say that the independent reviewer, David Anderson, is out and we will have to wait for his report—but I think that there is confidence on all sides of the House in his ability to bring proper forensic application to these issues and to provide a report which will be of great assistance.
The powers that we are talking about already exist; they are not new powers. David Anderson’s review will provide a safeguard as to whether it is appropriate to continue with them, but, rather as the chairman of the ISC, Dominic Grieve, said in the other place, there is strong and general acceptance that the powers are necessary and proportionate. Without straining the metaphor too much, people say that it is like looking for a needle in a haystack, but you must first have access to the haystack before you have any opportunity of looking for the needle. I commend the Bill.
Lord Janvrin (CB)
My Lords, as the noble Marquess, Lord Lothian, has mentioned, I am a member of the Intelligence and Security Committee. It is slightly daunting to follow four very senior members, either past or present, of that committee as I am a relative newcomer. I join them and other noble Lords, many of whom have direct experience of intelligence, security and law enforcement matters, in welcoming the Bill before us. It covers ground that is of real and utmost importance in terms of national security and the prevention of serious crime while touching on crucial issues of personal privacy in a digital context, which has been referred to many times; it is not only complex, but very fast-moving. We are also up against a deadline set by the sunset clause in the RIPA Act 2004.
I join others who have spoken, including in particular the noble Lord, Lord Butler, in acknowledging the vast amount of work orchestrated by the Government that has gone into the preparation of the Bill before us. It has been the subject of numerous reports, to which a number of speakers have referred, including two from the Intelligence and Security Committee. This work has led to the Bill now progressing through Parliament with intensive scrutiny, as was referred to in the other place. There is one further external review being done by David Anderson QC of the operational case for the intelligence agencies to have access to bulk investigatory powers. In the last Parliament the ISC considered bulk interception in great detail and was satisfied that that capability was justified, subject to robust safeguards and oversight. Furthermore the current ISC, again after considering a great deal of classified evidence on this subject, reached a similar conclusion for bulk equipment interference, the bulk acquisition of communications data and bulk personal datasets. I look forward to David Anderson’s review as an invaluable contribution to further consideration of these bulk powers by this House.
Your Lordships will be aware that a significant number of improvements have been made to the Bill in the other place, including extra safeguards, improved oversight mechanisms and stronger privacy protections. A number of these improvements were made on the recommendation of the ISC and we are extremely grateful for the co-operation shown and helpful approach taken by the Government throughout. That said, as the noble Marquess, Lord Lothian, mentioned, there are still a few aspects of the Bill on which my ISC colleagues have concerns or questions, and I should like to reinforce two of those, both of which have already been mentioned.
The first is the issue of restrictions on the use of class warrants for the retention and examination of the most sensitive personal information within bulk personal datasets. Noble Lords will be aware that the ISC tabled amendments in the Commons that would have restricted this power where a significant amount of the data would be sensitive. We looked to the Data Protection Act 1998 to determine what Parliament had already defined as being the most sensitive personal data. It is the use of generic class warrants in relation to that sensitive data that we have questioned. Our understanding is that the Government have accepted that in principle, but it would be interesting if the Minister could indicate whether he intends to bring forward amendments on this point in Committee.
The second aspect has already been referred to by the noble Marquess, Lord Lothian. It refers to offences for the misuse of investigatory powers contained in the Bill which are scattered throughout various pieces of legislation and common law. While in some cases there are severe penalties for abusing those powers, in other cases, as has been mentioned, the penalty can be described as little more than a reprimand or a moderate fine. Such penalties may be suitable for dealing with honest mistakes or more minor instances of negligence, but there may be a point where the malicious and wilful abuse of intrusive powers could be dealt with more consistently with the use of more severe criminal penalties than are currently available.
Finally, I shall raise a point referred to by the noble Baroness, Lady Neville-Jones, and the noble Lord, Lord West. It is some 18 months after the ISC’s Report on the Intelligence Relating to the Murder of Fusilier Lee Rigby, but it still seems unclear whether the extraterritorial nature of warrants asserted by the Bill will be honoured by communications companies based overseas. The ISC recommended in the Fusilier Lee Rigby report that access to communications held by overseas-based providers, particularly those in the United States, was a very significant security problem, so I would be grateful if the Minister could comment on the progress of negotiations on that matter, in particular with the Government of the United States.
As your Lordships scrutinise the Bill over the coming weeks, whatever views may be expressed regarding its specific provisions, we should not lose sight of what this new Bill as a whole achieves, as many speakers have already mentioned. In particular it makes significant improvements in terms of transparency by avowing certain intrusive powers for the first time, including equipment interference, bulk acquisition and bulk personal datasets. While the use of those powers previously was legal, they were shrouded in secrecy and obscured behind some fairly impenetrable legal language. Having these powers set out on the face of the Bill is a considerable improvement. We should also welcome the role of the judicial commissioners as an extremely significant safeguard, and while we may debate the detail of their role, once again I urge noble Lords to acknowledge this very welcome additional reassurance.
Based on the recommendations of the ISC, David Anderson and RUSI among others, the Government have recognised the need for a new, modern and transparent legal framework for this crucial and complex area. The Bill is a huge improvement on the legislation it will replace. I look forward to further discussions in your Lordships’ House as we scrutinise it in the weeks to come.
Baroness Liddell of Coatdyke (Lab)
My Lords, I draw attention to my entry in the register of interests. Perhaps I may join other noble Lords in welcoming the legislation and take up the point just made by the noble Lord, Lord Janvrin. We now have a much more modern piece of legislation and a more transparent one that will allow law enforcement agencies, security agencies and the judiciary to look more coherently at the necessary activities of safeguarding the well-being of citizens.
I listened with interest to the noble Lord, Lord Strasburger, but I have to say that the greatest human and civil right of all is the right to life. The biggest problem we face at the moment was drawn to our attention by the noble Earl, Lord Howe, at the beginning of the debate when he referred to the fact that we are having to deal with increasingly capable international actors who are prosecuting terrorism against not only us but internationally as well. My noble friend Lord Blunkett also referred to the fact that the cyberthreat is the greatest threat we face at the moment, not least because it is so very difficult to police—it can take place not just in the boondocks of Syria but in the back streets of Glasgow, London and Manchester as well. We need the protection that this kind of legislation can give us. Yes, it has had a very deep scrutiny, and not just in the other place. I do not remember a piece of legislation that has gone through so many iterations, with different committees of this House and elsewhere. That, in itself, is a very significant check and balance on the powers contained in the Bill.
I do not expect the Minister to provide it this evening, but as we go into Committee there are some areas where we need greater clarification. Sir Nigel Sheinwald, for example, looked at the international implication of parts of the legislation and it seems that only one of the powers has come up in terms of his conclusions in relation to international scrutiny. I may have misread this, but I would welcome clarification from the Minister about how we ensure that this legislation is internationally compliant and that, with our allies, we are able to work within a framework of legislation that does not hinder anyone; it will increasingly be in that area that we will need to share information, not least because of the events of last week. It would be very useful to have some detail on what evidence there is of how compliant this legislation would be with EU regulation; we have to be able to convince people who are no longer our partners of the request for information and for action that will be contained within the powers in the Bill.
I said that we are dealing with increasingly capable international actors. We are also dealing, as noble Lords have mentioned, with an extremely rapidly growing technological capability, both legal and illegal. I would welcome some reassurance from the Minister on the flexibility that is contained within the Bill to enable a response to changing international circumstances and changing technology. The one thing many of us have learned from the most recent cyberthreat is that the threat quite often comes not from organised entities but from clever individuals, some of whom are still at school but who can pose a cyberthreat. It is very important that we have the flexibility and capability to deal with that.
Another area that has been referred to, not least by the noble Lord, Lord Campbell of Pittenweem, is the protection of privilege. We heard a very eloquent speech by the noble Lord, Lord Pannick, about legal professional privilege. The area of Members of Parliament is a significant one but there is also the area of journalists. In the old days it used to be quite easy to define who a journalist was, not least because they would have to carry a National Union of Journalists card—I speak as an ex-journalist. However, nowadays many people portray themselves as journalists because they write a blog that maybe 10 people read. We need to deal with the issue of the protection of sources, because serious journalists get serious information from sources. Journalists themselves have to do a degree of policing, because there has been irresponsible behaviour by journalists in the past and the profession must raise standards. But we will cease to have the kind of free press that is important to our society if we are not in a position to give a guarantee of protection of sources to journalists in appropriate circumstances.
I am very much looking forward to the detail of the rest of the Bill. The issue of bulk powers is a fascinating one. I am no expert; I am neither a lawyer nor a member of the Intelligence and Security Committee. I, like everybody else, am concerned about my personal privacy. I am sure that noble Lords are much too exalted to spend their time shopping online, but I do, and Google and Amazon know more about me than my husband does. We sacrifice our privacy every day. Agencies outside the security services are collecting our data and we turn a blind eye to it. This is a means of collecting data that can save people’s lives, not just help them to get a nicer pair of shoes. It is important that we recognise the importance of it and balance it against the need for privacy.
I congratulate the Government on bringing the Bill before the House. It is a modern take on legislation that in the past has lacked transparency and been complex, and I look forward to its early passage on to the statute book.
Lord Hennessy of Nympsfield (CB)
My Lords, I declare my membership of the Royal United Services Institute’s independent surveillance review, whose report A Democratic Licence to Operate was published last year. Open societies possess huge, enduring and, we hope, ultimately prevailing advantages over closed ones, yet open societies throw up special torments of their own—what one might call duelling desirables. This Bill lies classically in that territory, because it attempts to reconcile two duties to protect; the protection of our people from those who wish them and their institutions harm, and the protection of our people against state power, which involves a loss of liberty that trenches on the private conduct of their lives. John Stuart Mill caught this perpetual dilemma in the mid-19th century in his celebrated work On Liberty, when he wrote,
“the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection”.
More recently, my colleague on the RUSI review, Sir David Omand, said:
“Without security you cannot protect human rights”,
a point made by other noble Lords during the course of this debate.
There is a third element; the technical race between the protectors and the would-be harmers, the collection of pre-emptive intelligence which, in its modern form, has been with us since the early months of the Great War. I have with me a copy of the single-page, handwritten minute penned by the First Lord of the Admiralty, Winston Churchill, and countersigned by Jackie Fisher, the First Sea Lord, on 8 November 1914, instructing that all the decoded signals intercepts of the Imperial German Navy, current and past, should be kept in a locked box, in Churchill’s words,
“in order to penetrate the German mind”.
To this day, GCHQ regards this little slip of paper as its founding document, which led, in both world wars, to a British signals intelligence capacity on an industrial scale which was crucial to the outcomes to both conflicts.
I am, of course, aware that total wars create different conditions from the spectrum of state and the multiplicity of non-state threats we face today in our own age of anxiety. The RUSI panel was acutely aware of this and of the prospect of leaping technologies, to which I referred a moment ago. As a result, we came up with 10 tests, some of which the noble Lord, Lord Paddick, mentioned earlier, which should be applied in open societies whenever the John Stuart Mill dilemma presents itself anew. I deeply hope that the Minister will be able to accept those 10 tests this evening on behalf of the Government. They are, very briefly, as follows. The first is:
“Rule of law: All intrusion into privacy must be in accordance with law through processes that can be meaningfully assessed against clear and open legislation, and only for purposes laid down by law”.
That is our business this evening. Secondly, there is necessity and, thirdly, proportionality. Fourthly:
“Restraint: It should never become routine for the state to intrude into the lives”,
of the Queen’s subjects. The state must always and everywhere be a reluctant intruder. Fifthly, there must be effective oversight, with arrangements for the independent investigation of complaints. Sixthly, there must be a “recognition of necessary secrecy”. The secret state should be treated as a needed protector of the open society:
“It cannot be more than minimally transparent”,
to be effective, but it must be accountable to Parliament. Seventhly, the necessary secrecy, however, must be kept to the absolute minimum. Eighthly, transparency: how the law applies to the citizen must be clear and comprehensible. Ninthly, this presupposes legislative clarity, which, of course, is part of our job. Finally, UK Government policy on intrusion should as far as possible be “harmonised” with that of other “like-minded” open societies.
In my judgment, the Bill genuinely seeks to meet those tests, but I shall be listening very carefully to the arguments, especially on legal professional privilege. I take very seriously what other noble Lords have said, and what the Law Society and other liberty and justice-related bodies have said about the crucial ability of individuals to consult their legal advisers in confidence. As a former journalist, I shall take an interest in the degree to which journalists and the confidentiality of their sources are drawn into the Bill.
When I was operational, in the old days of the very old technology—just telephone tapping and a leak inquiry—I used to quite enjoy it, as long as I knew there was a leak inquiry, which I often did. I would plug the phone in on Whit Mondays to “Dial-A-Recipe” or the Test score, just to throw them off the scent. It was a trivial, adolescent thing to do, but those were the days of simplicity, when such things were possible.
The secret parts of the state and the law enforcement agencies wish for and need a new licence to operate in a world of shifting perils and surging technologies. Let us craft one that reconciles as closely as any Parliament can the two duties to protect with which an open society must always wrestle, because only Parliament can set the dials for the work of our secret services.
Baroness Harding of Winscombe (Con)
My Lords, it is humbling to follow so many noble Lords this evening who, if it is not too back-handed a compliment to say it these days, are such experts in this subject. Let me declare my more prosaic interest as the chief executive of TalkTalk, the communications service provider.
Debating the balance between liberty and security is not new. What has changed is the methods people use to threaten our security and to express their freedom. It will not come as a surprise to hear that I think that the internet is a wonderful tool, but just as it can accentuate what is good about the world, it can also accentuate the bad. There is a growing body of psychological evidence that the internet amplifies human behaviour. People shout online in a way they would never do to someone’s face, and the internet can connect criminals globally in a way that would be inconceivable in the physical world. The internet did not invent child abuse, terrorism or organised crime, but left unchecked it does allow those crimes to be committed on a much grander scale. Any child abuse is clearly horrific, but the internet takes those crimes to a global audience and allows those criminals to monetise it globally.
We know that ungoverned spaces in the physical world become havens for criminality. The same is true online. I am passionate about the opportunity the digital world can bring for this country—even more so after the events of the last week or so. I see the opportunity for Britain to be a brilliant digital nation, but we need a civilised digital world where the rule of law is clearly established by Parliament, where our law enforcement agencies have clearly articulated powers to act in the digital space, and where there is robust and transparent monitoring of those agencies by the judiciary and Parliament. That is why I am pleased to support the Bill and to play a part in what is clearly a very important debate.
As my noble friend the Minister said, the vast majority of the Bill covers powers that already exist under various disparate Bills. As DRIPA expires, the Government are right to take the opportunity to consolidate those powers into a single Bill, creating simplicity and the very transparency that is one of the ways to ensure that we maintain the right balance between freedom and security.
As a number of noble Lords have said, the Bill also needs to keep pace with technological changes, and I would like to focus my remarks on the most significant new power in it: the use of internet connection records. Whereas once, criminals communicated by phone, like everyone else they are increasingly moving online. For criminals—in fact, for all of us—the boundaries between the digital and the physical world are very porous, but our current legal framework still treats them very differently. Knowing what website someone visits is just the modern equivalent of knowing who they called. Knowing what IP address they are using, I would argue, is very similar to knowing which phone line they are calling from. Yet at present, we create a false legal distinction that artificially handicaps law enforcement agencies by denying them digital powers equivalent to those they have in the voice telephony world.
From my experience, it is right that police can access communications data. In just the first six months of 2016, nearly three-quarters—72%—of National Crime Agency comms data applications to TalkTalk related to child sexual exploitation. But child abusers definitely do not just use their phones to make calls. The next biggest category, 16%, concerned threats to life. How many of these cases would be resolved, how many lives saved, by extending access to internet connection records as opposed to voice calls only? That is why I welcome the inclusion of internet connection records, and why I believe that access to them is proportionate in a digital world. That does not mean, however, that we should just wave this legislation through. The digital world amplifies all behaviour, good and bad, so it is undoubtedly important that we scrutinise very carefully how these new powers can be used and their use monitored.
I will not even attempt to opine on the legal checks and balances proposed in this legislation. I am not a lawyer—I run a business—and I bow to the considerable legal expertise in this House and the other place on how best to ensure sufficient oversight, so that the various agencies that could access this data do so only when appropriate, and to ensure that individual freedom to roam the internet legally is well protected. But as the great legal minds in this Chamber begin that debate, I would like to add a little practical context on both the feasibility and the associated costs of storing and using internet connection records.
In principle, it is feasible for communication service providers to store internet connection records. It is, however, a non-trivial task, and the Government will have to work closely with them for some time to ensure it is achieved in a proportionate, practical and cost-effective way. Different businesses’ networks are configured in different ways, so the flexibility the Bill allows for different approaches is a practical and pragmatic way forward. The combination of obligations on the Home Office to consider the practical implications and costs on businesses before issuing a data retention notice, including the new privacy clause that places an obligation to consider the security of data storage systems, sets out clear safeguards that prevent this legislation being implemented in a way that is unreasonable for businesses, or that places unachievable obligations on industry.
A number of domestic communication service providers, including my own, have questioned the Home Office’s cost estimates. While I think it is fair to say that concerns remain about these estimates, I was reassured by the clear commitment from the Home Office that its figures are an estimate based on its expected implementation and do not in any way represent a cap or a budget. The Home Secretary was explicit in the other place that government would cover the costs incurred in the industry, and colleagues of mine across the sector will hope that my noble friend the Minister can reiterate that today.
Let me be clear: there is more work to do. The Government need to work closely with all providers likely to be affected by the legislation in order to understand what these obligations may look like for each provider and how much they will cost. But this is to be expected with new obligations, and the Bill as drafted provides the industry with the right safeguards that businesses need.
This is a hugely important debate. The moral, legal and social scaffolding for the digital world does not yet fully exist. I am a firm believer that the UK is better placed than any nation in the world to take advantage of the digital revolution and, just as we did with the Industrial Revolution, we need to ensure that the digital world is a civilised world where there is the rule of law; where Parliament has set out how we as a society balance individual freedom with security; where we do not tolerate unpoliced no-go areas; and where British liberal democracy flourishes.
I believe that this is an important Bill that helps us in that journey, a Bill that gives the UK the legal framework needed to protect our citizens without infringing on the innovation and creativity that we love about the online world. I am pleased to support it.
Lord Rooker
My Lords, it is clear that technological developments have greatly enhanced the capacity of Governments, companies and citizens to know more about individuals and undertake surveillance, interception and data collection. As such, the internet has become the front line in the contemporary debate about privacy and security. Such developments, though, as many have said, have created new avenues for serious crime by individuals, gangs and nations on an international basis. This Bill is part of our—I stress “our”—attempt to square the circle between the needs of security and privacy. It is a Bill I welcome and support.
I served on the RUSI Independent Surveillance Review. Our report, A Democratic Licence to Operate, showed that we need not abandon the values that are most important to us as citizens in order to protect our society. Current legislation providing the basis for the interception of communications is less than 20 years old, but it predates Google, Facebook and Twitter, so we are right to refresh and update the tools of the state. The threat is clear. First, international organised crime knows no boundaries. Secondly, information and communications technology spans borders, but Governments must be able to protect their sovereign territory. We have to meet a challenge: in an open society the secret part of the state has to remain secret to protect the openness, but it has to be regulated. The state should always be reluctant to invade the privacy of its citizens, and those who do this vital work should do so with a feeling of unease.
The RUSI panel set out the 10 tests, which I shall come to—I will not repeat what the noble Lord, Lord Hennessy, said—which legislation and government should meet. First, I will refer to the private sector. Google, Facebook, Microsoft, Twitter and other internet companies continue to lobby on this Bill. They could never have started up their commercial, profit-making businesses in autocratic societies such as Russia, Iran or China, to name just three. Our open, democratic system, based on the rule of law, which enabled them to start up and operate, is under threat. As such, they should not demand no-go areas for regulated law enforcement officers who seek out serious organised criminals. Law-enforcement agencies should never be in the position of not being able to seek, or ask about, information. This is not the same as having a back door into the servers of companies.
I sincerely hope that as the Bill proceeds—we have a way to go yet—we will explain that we do not conduct mass surveillance in the UK. Indeed, it is not done in the USA. Collection of bulk data, most of which are never even read, does not constitute mass surveillance. In general, I prefer Ministers to be involved in the warrants that are required for interception and surveillance. There is a degree of accountability that I think is an important aspect. But I do appreciate that this is not enough. There has to be a judicial role and oversight has to be strengthened. Indeed, I would want to be convinced that we have oversight of the oversight. We must always ask, “Who watches the watchers?”. The Bill attempts to do this. I note that the Government will bring forward amendments that were promised following the debates in the Commons.
It is amazing what is already being done but is never reported. Among our evidence sessions the RUSI panel held a round table with the Information Commissioner, the Intelligence Services Commissioner, the Interception of Communications Commissioner, the Surveillance Commissioner and the Chief Surveillance Inspector. I do not think that any of their published reports make the bestseller lists but they are there for us—parliamentarians and Select Committees—to read and question. That is absolutely crucial.
Unfortunately, however, in the past some public authorities have used powers which many believe they should not even have had access to. When RIPA 2000 went through, nobody raised the prospect of local authorities using it in respect of rubbish collection or access to school places. That has been stopped but it gave the whole thing a very bad, nasty taste. The powers in the Bill should be limited to the most serious issues affecting our society, with very strict rules about the process to be used.
Let us not beat about the bush or sugar-coat the issue: the Bill is about intrusion into privacy. The public have to be convinced that all the actions are legal and are the right actions to take on behalf of the public. This is not easy when some aspects must remain secret. The RUSI panel declared the 10 tests which Parliament, government and the public should apply when considering the conditions under which the police and intelligence and security agencies can intrude upon the privacy of the citizen. They are set out on pages 104 and 105 of our report. The noble Lord, Lord Hennessy, listed the 10 tests. Between now and Committee, will the Minister provide a very short paper on how the Government think that the Bill meets the 10 tests? That will save a lot of time in Committee, because otherwise we will have debates for hours. They are legitimate tests to which the Government should respond. The panel spent a lot of time working on this issue. Such a response would not be too difficult and would considerably ease the Bill’s passage.
The Bill itself is a democratic licence from Parliament to government. The report’s title is correct: it is a licence to intrude but it is a democratic licence based on regulation and oversight. The Government’s role is to protect the nation, its citizens, our way of life and the values we live by. Our tolerance must not be abused by intolerance that seeks our destruction. We have to be careful that we do not allow our tolerance to lead to our own destruction. But, as the RUSI report shows, and as was backed up by other reports, we can maintain the values that are most important to us as citizens in order to protect our society. This Bill makes a very important contribution to this aim.
Lord Macdonald of River Glaven (LD)
My Lords, I start by acknowledging the value of the work of our security services and its contribution to the security, prosperity and maintenance of freedom in our country.
During the five years that I worked closely with them, I found the security services to be well led by men and women who were clearly sensitive to the need to find an appropriate balance between security and liberty and thought deeply about these issues. In particular, I acknowledge the work of GCHQ, which is likely to be more impacted than most by this Bill. It is an extraordinarily important national asset and extremely well led by its director Robert Hannigan. He and his senior team seem sensitive to public concern and eager to find a legal framework that wins public confidence for their work.
I believe that it was a mistake for the Government to connive at a situation where some security programmes, such as Operation Tempora, the GCHQ programme, stretched the legal authorisation scheme then in force under RIPA to breaking point. So I welcome this present Bill as a serious attempt to create a framework of law in which the security services can do what is necessary to protect us, but within the context of a respect for civil liberties that is appropriately robust.
I want to address three areas. First, noble Lords have already spoken about future-proofing. This was a growing problem with RIPA. The speed of technological advance is quite extraordinary. The provisions that will be debated in detail by your Lordships’ House need to stand the test of time into at least the medium term, and should be judged against their capacity to do that.
Secondly, I encourage noble Lords to be realistic about the capacity of internet connection records to lay bare the most intimate details of a person’s life. This is not like telephone data; wholesale retention for 12 months means allowing access to more than raw data. It allows access to people’s lifestyles, beliefs, sexual practices, health and perfectly legal secrets. So we should consider this part of the Bill with that reality closely in mind. For my part, having seen the importance of communications data to serious criminal prosecutions—almost every serious criminal prosecution that was brought when I was chief prosecutor relied on data of this sort—I am inclined to support the clauses which refer to internet connection data. However, in debating these matters, we should recognise the significant concern outside Parliament in so far as this part of the Bill is concerned.
Thirdly, I will deal with protections against abuse. Foremost among these are the judicial commissioners. As someone who has been calling for a judicial role in the area of security practice for very many years, I strongly welcome the proposals in the Bill for judicial commissioners. There is a question as to whether they should be operating a judicial review test or a merit-based one. Some, including the noble Lord, Lord Campbell, say that it is for a politician to judge the merits and that a Secretary of State should be overturned only if his or her authorisation is irrational or unlawful. Others argue that a judicial confirmation of the merits would be an important protection against political abuse of these highly intrusive powers. I am inclined to agree, subject to debate, that security decisions are for the Minister and the lawfulness of the process is for a judge.
In making my final point about the judicial commissioners, I make clear that I yield to no one in my admiration for our retired judges. But it is very important that the judicial commissioners have, within their number, a majority who are active judges, adjudicating routinely, with full public confidence, in other areas of the law at the highest levels. This would encourage and underline a public view that the commissioners are independent and worthy of public confidence in their work. Let us have as many senior, working judges as possible among the judicial commissioners. In that way, we will avoid any hint or suggestion—however undeserved—that they are a club that can be won over by one side or another. Public confidence in the process of authorisation can only be enhanced if we ensure a majority of working judges within that important body of people.
Lord Birt (CB)
My Lords, like the noble Baroness, Lady Harding, I shall focus on crime rather than security. I support the Bill because it will reduce the number of victims of crime. Evidence of location obtained from use of a mobile device can be vital in a rape case, in domestic violence, or where, say, an older man has absconded with a young girl. These are all real examples. The powers defined in the Bill are limited, targeted and proportionate, and the safeguards convincing. However, while welcoming the Bill, I wish only that it went further.
It is a commonplace now to assert that crime is reducing, but I strongly suspect that it is not. Rather, crime is migrating from the physical to the digital world where it mostly remains unrecorded and undetected. The internet offers enormous advantages to the organised, persistent offender. Would-be criminals can readily hide their identity. They can troll and threaten anonymously. They can cast a million flies on the water with a phishing email soliciting PIN codes and account details from the unsuspecting. Paedophiles can operate with impunity in the secure bastion of the dark web. Thousands of credit card details can be purchased in that evil digital marketplace, too, stolen in skilful raids which take advantage of weaknesses in the cyberdefences of major corporations. Anarchists can and do mount denial-of-service attacks on institutions, powered unknowingly by malware secreted onto the computers of thousands of innocent users.
Most attacks are hidden and unreported, but we all recall the attack on TalkTalk, about which the noble Baroness, Lady Harding, has spoken, and which reportedly cost the company £60 million. Last year, malware was lodged within the systems of the Bangladesh Bank, and its internal processes observed over time. Earlier this year, during a public holiday, instructions were given by fraudsters to transfer just under $1 billion out of the bank. This was thwarted because, as is so often the case—we see it in phishing emails which reach the House of Lords—the fraudsters misspelled a word in the order, and the fraud was spotted by Deutsche Bank, though not before $80 million was lost and remains unrecovered.
Until recently, I was chairman of PayPal Europe, where I witnessed at first hand the gigantic scale of online fraud. Much of it is cross-frontier; barely any is investigated by law enforcement agencies, and little is prosecuted. I read a wonderful book recently, by an American historian, about Tombstone, Arizona, in the 19th century, when the discovery of a silver lode created a town virtually overnight in a part of the frontier that had been lawless. The internet is still a wild, untamed frontier with a plenitude of outlaws; and a latter-day Wyatt Earp is yet to emerge to bring us law and order. We do not know the full cost to the UK economy, and others, of online fraud but, from my own experience, I suspect that it runs into tens of billions. During my 10 years at PayPal, I saw multiple attempts to persuade Governments to tackle fraud, and they came to naught. I note that the estimable Sir Nigel Sheinwald has recommended that the UK should lead the way in developing agreements to foster global co-operation in fighting cybercrime. I concur, but at the same time note the terrible irony of that statement as our country prepares to leave the best possible stage for mounting and winning that argument in exchange for a bit-part role.
Although the Bill is a welcome, if small, step towards taking law enforcement further into the digital universe, I urge the Minister to bring due focus and energy, and proportionate measures within government, to fighting the full and value-destructive extent of crime committed by digital means.
Lord Lucas (Con)
My Lords, I could not agree more with the noble Lord, Lord Birt. The Government are inviting us to walk down the digital street, but it is a street which would have frightened Dickens. The Bill misses opportunities to do something about that. The information which the Government are giving themselves access to in the Bill would enable them to help us, as ordinary citizens, to deal with the tide of three-card-trick salesmen, conmen and pimps that assails us every day on the internet. However, there are no proposals in the Bill to do anything, which is quite astonishing. Of course, it is not astonishing because it is a Home Office Bill. We have had this before: noble Lords on the Benches opposite will remember when they tried to get us to take identity cards. That failed because it was a Home Office Bill; there was nothing in it for the ordinary citizen. All the advantages for the ordinary citizen that might have come from an identity card system were neglected. There was nothing there; it was just, “we want to control you”. Yet, as others have pointed out, we readily accept an enormous exchange of information and control with the likes of Google and Facebook because they offer us something in exchange.
The Home Office will have to get a grip on this. How are we to deal with open borders, post-Brexit? Presumably we will still have visa-free travel with Europe, as is proposed for Canada and other countries. It would be very odd to introduce visas, so we are going to need some kind of identity system so we can catch up on people after they have got in. This is about the only way one could police a border in Ireland, let alone one with Scotland. We really have to change the Home Office to an organisation which thinks of us as citizens as well as thinking of itself as a controller of citizens. It would be excellent if the Bill could start to do that by making sure that the Home Office at least has the power to use all the information it is gathering to start reducing the level of crime described by the noble Lord, Lord Birt. I also agree very much with the noble Lord and others on the need for international collaboration. That has to be the way forward. I do not share with him and the provisional Opposition opposite—I do not think that, after today’s meeting, I can call them the Official Opposition any more—the feeling that disconnecting from Europe will slow this down. This will be an international thing that does not care for other structures: a community that all nations committed to democracy will join, whether or not they are part of any individual organisation.
I have worries, too, that the Bill has not really addressed the question of speed. There are circumstances where the Government need quick access to information. In the course of the London riots, it was really noticeable how slow official processes were in catching up with information as to what was going on but communication service companies have those capabilities. They will perform checks online in real time if someone proposes to do a financial transaction. That is routine but you need access to and collaboration with the computing power that communication service providers have to make good use of it. You cannot seek to have a second-hand flow of information and hope to build government systems that will do the deed in real time, enabling you to get on top of the flow of information taking place among people in the middle of a civil disturbance. In the course of the Bill, we have to look at how to enable the Government to collaborate with the communication service providers when speed becomes of the essence and to make sure that we are not putting any obstacles to doing so in their way.
However, I share some of the concerns about the ICR and what we are creating with the request filter. We are producing a resource there that Francis Urquhart would have loved to have his fingers on: absolute knowledge of everyone’s private life. We would have to be so clear that what we are doing will not be abused and is not open to abuse. To have a system which can be accessed without warrant or proper record of what has been done—without proper supervision of those records—really opens us up to abuses of power and of position, in a way we should not do. I am very encouraged by the quality of the debate. This House is clearly full of people who understand these problems a great deal better than I do, so I am confident that we will do something about it. We should take this seriously and I look forward to Committee to do just that.
Baroness Ramsay of Cartvale (Lab)
My Lords, because of time constraint and the long list of speakers, I intend to be as brief as possible in this Second Reading of a vital and very detailed Bill. I hope there will be plenty of opportunity to deal at greater length with issues at the later stages of the Bill.
I speak from a base of my own professional experience in government service, where I spent some time in this precise field of activity, as well as having served in my parliamentary life twice on the ISC and later on the Joint Committee on the National Security Strategy. Today, I would like to make a few general remarks about what are called bulk powers because, over the last decade or so, they have been absolutely essential to the three security and intelligence agencies—SIS, MI5 and GCHQ—and everyone agrees that they are bound to be increasingly important in the future.
Bulk data are information acquired in large volume, as the Minister explained so very well in his opening speech, and are used to provide vital and unique intelligence that is unable to be obtained by any other means. Bulk data are among the most important tools that the agencies have to help them identify security threats inside the United Kingdom and threats to UK interests and citizens abroad, including in the Armed Forces, to find links between targets of interest, to establish behaviour patterns and communication methods, and to monitor attack planning et cetera. The Minister confirmed in his opening speech that the Government are committed to a review by David Anderson to assess whether the bulk capabilities provided in the Bill are necessary. I understand that the review is expected to conclude in time for our consideration of Parts 6 and 7 in Committee, so I look forward to dealing with it all then.
I conclude with one brief personal comment. Like the noble Lords, Lord West, Lord Campbell and Lord Rooker, I have some serious reservations about the so-called double lock, which involves a judicial commissioner in the authorisation process. I am quite content to have judges in oversight and judicial review but I do not feel at all relaxed about letting judges into the authorisation process. Not for the first time in this House, I say with the greatest of respect to any noble and learned Lords here tonight that I really wonder where this cult of judge worship comes from. It seems to grab legislators, especially when they are dealing with intelligence and security affairs. However, I hope we can come back to and elaborate on this at future stages of the Bill. On the whole, it really is an excellent Bill and I wish it a smooth passage through this House.
Lord Carlile of Berriew (LD)
My Lords, it is always a pleasure to follow the noble Baroness, Lady Ramsay, but it is a privilege to follow her on a subject of which she has the theoretical knowledge, and probably more practical knowledge than almost any other Member of this House—certainly more than most who are prepared to admit it. I know that repetition rarely involves improvement to the decent argument so I propose to make a few points of emphasis rather than repeat what has been said. I can say at the outset that I support the Bill, for the reasons just given by the noble Baroness and by noble Lords including the noble Lords, Lord Murphy and Lord Butler of Brockwell, my noble friends Lord Campbell of Pittenweem and Lord Macdonald, the noble Lord, Lord Rooker, and the noble Marquess, Lord Lothian.
I have some misgivings about the Bill. They are three in number and I can state them briefly. The first is the issue of legal professional privilege. I am not going to repeat a word of what was said so eloquently by the noble Lord, Lord Pannick, and my noble friend Lord Lester. I simply invite the Government to continue to consider that issue and to respond consistent with the advice that has been given in the debate.
My second misgiving relates to the use made of certain types of records. We have to be careful to ensure that, for example, medical records are used only for a legitimate purpose. I can see extreme circumstances in which medical records might be relevant to a terrorism event but the use of such records would have to be extremely carefully controlled, so what I would describe as the principle of legitimacy of use is essential to the Bill.
My third misgiving echoes something that was just said by the noble Baroness, Lady Ramsay, alluded to earlier by my noble friend Lord Campbell and stated pithily by my noble friend Lord Macdonald. It is about judges. I have general reservations, as she does, about the role of judges in what is essentially a ministerial act. It is Ministers who are briefed every day on national security issues and who have been issuing warrants though history. It is senior civil servants, such as some of the retired civil servants who have spoken so well in this House—there may be one or two more to come—who have consistently given advice to Ministers. I do not object to judges being involved in some way, but it must be a legitimate way. If judges are to be involved, it is to be for the verification of what has been done and of whether it has been done in accordance with legal principle. That means by the use of the rules of judicial review. Judges are not trained to authorise warrants. Most judges do not want to be trained to authorise warrants, and they should not be thrust into that role. I agree emphatically with my noble friend Lord Macdonald of River Glaven that it is desirable that serving judges should be included as judicial commissioners. It is not that retired judges do not do the job well—they do their work brilliantly in most cases—but the political optics of this issue are very important. The cohort of judges who act as judicial commissioners should include serving judges who go back from their commissioner role to the courtroom in which they give judgments on issues of fact and law so that they are seen to be not in any way the beneficiaries of political largesse.
Earlier, the noble Lord, Lord Blunkett, referred to a telephone call he made to me on 11 September 2001. It was probably a call I should not have returned because it resulted in my becoming Independent Reviewer of Terrorism Legislation. I did the job from 2001 to 2011. Even in 2011, it was nothing like as complex as it is today, and I pay tribute to my successor David Anderson QC for the brilliant work he has done, the outstanding legal analysis he has brought to his role and his sensitivity to the most difficult political setting in which he has had to carry out his role. It was much easier in the period when there was a Labour Government. Not all the Home Secretaries were entirely consistent in their views, but broadly they were, considering how many there were over those years, including one who is in his place on the privy counsellors’ Bench. David Anderson has had a much more difficult task. The House should be extremely grateful to him for what he has done.
I am frankly outraged, and I suspect David Anderson is, too, by the criticism of civil servants in the Home Office by one speaker in this debate. I observed civil servants in the Home Office over nine and a half years carrying out their role without bias, fear or favour, just doing their sometimes very difficult duty. The suggestion that civil servants in the Home Office, or anywhere else in the public service who I have observed at close quarters, have dealt with terrorism issues in a way that is dishonest in any way whatever just fills me with horror, and I hope that Lordships generally will reject that slur on our civil servants. It should not have been made.
Taking a much more constructive point now, I hope, what we have is a changing situation. As I discovered in my nine and a half years as Independent Reviewer of Terrorism Legislation, dealing with terrorism is not science or even art; it is just something that changes day by day. It does not evolve; it simply changes, sometimes suddenly, by mood and disruption in the political and democratic metabolism of the world. Sometimes the changes are unpredicted, and often they are completely unexpected. We should bear that in mind as we look at the detail of the Bill in the weeks to come, and I look forward to playing my part.
Lord Condon (CB)
My Lords, I support the Bill, yet in doing so, I understand all the fears and concerns about privacy that have followed it from inception and through its passage in the other place and which are now central to our discussions in your Lordships’ House. As we have heard, your Lordships now have the responsibility to set the balance between the need for privacy and the right of our fellow citizens to live in safety and security.
For seven years, from 1993 to 2000, I was Commissioner of Police for the Metropolis and, as such, during those years I was at the centre of the policing operations to combat terrorism and organised and serious crime. I think the main service I can provide to your Lordships’ House today is to emphasise, as other have, but from my personal experience and knowledge, how advances in technology have totally transformed how terrorists, serious and organised criminals and paedophiles prepare for their crimes, conspire together and carry out them out. That is why the provisions in the Bill are essential if we are to protect our citizens. In preparing for the Bill, I spent time discussing it with the current director-general of the National Crime Agency and her predecessor, and I spent time with their operational colleagues at all levels in the National Crime Agency.
In 1996, only 20 years ago, and during my watch as commissioner, only 45 million people worldwide had access to the internet, and only 15 million of them were outside the United States of America. Google did not open its first office until 1998. iPhones were launched only nine years ago. Compare and contrast these facts with your own experience. According to Ofcom, 66% of adults in the United Kingdom now have smartphones, 81% of adults send emails and 62% of smartphone users have social media applications. The way that terrorists and criminals plan and conspire to carry out their crimes has been transformed in the relatively short period since I left the service. They have migrated from using mobile phones and meeting each other physically to a web-based and largely non-verbal environment.
The methods deployed by law enforcement agencies to disrupt and detect criminality in all its forms and to protect society must keep pace with these changes. The tradecraft and methods of preventing and detecting crime from my time in policing seem increasingly obsolete and ineffective when faced with the challenges of the digital age and communications data. Law enforcement agencies need to keep pace with the realities of these changes. Analogue-age powers are no match for digital-age terrorists and criminals. Telephone calls are no longer central to how people communicate, and they are certainly not how terrorists and other criminals communicate. As other noble Lords have said, criminals and terrorists now use social media, WhatsApp, internet chatrooms and every opportunity that a rapidly evolving internet world gives them.
Legislation must respond to these changes and, with vital checks and balances, create a framework which allows law enforcement to combat terrorism and serious crime. In most respects, this Bill seeks to consolidate and recalibrate existing powers, but I acknowledge that the extension of powers into the world of internet connection records is controversial and challenging. I believe the extension of powers into internet connection records is essential and is a proportionate response to the real world in which criminality and terrorism are planned and now take place. Communication data are a vital evidential ingredient of virtually every major case dealt with by law enforcement agencies. For example, the House heard earlier about the recent gun smuggling case which was this country’s biggest known gun smuggling operation. It was analysis of communications data that provided vital evidence and allowed the attribution of telephones, various other devices and SIM cards, and the identification of key locations linked to the gun smuggling. It should be remembered that similar automatic weapons, from similar European sources, were used in the deadly terrorist attacks in Paris and Brussels. Analysis of recent National Crime Agency cases suggests that in at least 14% of its cases relating to child abuse imagery, it would require the retention of internet communication records to have any prospect whatever of identifying a suspected paedophile. The provisions in the Bill relating to ICRs are not really about extending the boundaries of acceptable law enforcement but are more about retaining law enforcement capacity in the dramatically changing digital world.
I hope we will find ways to assuage the very understandable and reasonable fears that some Members of your Lordships’ House have about some or all of the Bill. In particular, I understand the concerns about the proposals for internet connection records, including how they are defined and what they can include. If additional privacy offences are required, let us add them to the Bill; if additional safeguards are required, let us define and incorporate them. But I hope your Lordships will be prepared, after what I know will be robust discussion, to pass the main provisions of the Bill.
Baroness Chalker of Wallasey (Con)
My Lords, it is now some 19 years since I concluded my time of more than 11 years in the Foreign and Commonwealth Office. It was in that time that I became deeply aware of the need for proper legislation to assist the Government to protect our citizens. In the intervening 19 years, technology has changed out of all recognition, as many of your Lordships have already said. The Bill has been most thoroughly prepared, and I support it fully, but it may need some amendment—not major, because most of that work has been done, as has already been described.
Some will be surprised at my intervention in this very erudite debate, and it would be foolish at this hour to repeat the case for the Bill made so well by my noble friend Lord Howe in introducing our debate some hours ago and the detailed remarks that have been made about the different aspects of the service providers. I was very glad to hear from my noble friend Lady Neville-Jones when she spoke of the data outside the UK and the need to establish international agreements as the primary route for UK agencies to obtain data from the communications service providers—I agree with her. What I believe we need to do above all is to make sure that the Bill—the Act that it will become—is a template for other countries.
As noble Lords will know, I am involved in trying to encourage investment into the developing world. There is an urgent need for our legislation to be a template for other countries because no one, apart from the United States, is thinking in the terms that this Bill is thinking about what is needed. British companies, especially those in technology such as BT, are considering major investments overseas. They need to be satisfied that the legislation which will cover their operations in India, South Africa and many other countries is properly drafted. My concern is a little different perhaps from that of other noble Lords. It is that we get the Bill absolutely right, not only for the reasons that have been expressed here but so that we can work with others on security matters on a similar basis. We shall never be able to prevent all the criminal activity or the terrible sexual grooming using only UK measures and UK internet connection networks—we have to have, and set, an international standard. In thinking about the wider effect of the Bill, I suggest to my noble friend Lord Howe that we will need further amendments to it so that it is worthy of emulation around the world and minimises the risk of retaliatory action against UK communications service providers that are investing abroad.
We need to establish some international agreements as the primary route by which UK agencies obtain that data from overseas CSPs. I believe we should disapply the extraterritorial application of UK law in situations where it is done pursuant to an international agreement, in line with David Anderson’s recommendations. We should also ensure that overseas CSPs can bring their concerns to the Investigatory Powers Commissioner without conceding jurisdiction and permit the commissioner to see amicus curiae from effective parties. I hope we can set out the functions and responsibilities of the Investigatory Powers Commission, including a power to hear and respond to petitions from interested parties. I hope, too, that they extend the conflict of laws defence for overseas companies. We should not state in the Bill anything which might be construed as requiring a company to weaken or to defeat its security measures, which are a critical component of efforts to protect users from hackers and from other threats. This is a complicated area on which I have only very limited experience, but I believe we need to set the example for other countries and help to ensure that other Governments have laws with which we can work.
Lord Beecham (Lab)
My Lords, I begin by referring to my interest as an unpaid consultant to the solicitors’ firm of which I was for many years the senior partner, but also with an admission of what Members may consider is for me an unusual degree of diffidence. I have to admit to being far from a master of information technology, or indeed any other sort of technology, and therefore that I find the language of the Bill somewhat difficult. As has been stressed on all sides of the debate, here and elsewhere, there is widespread acceptance of the maxim that the first duty of government is the protection of the safety of the citizen; it is also accepted that the second duty of government is the preservation of the citizen’s freedom and privacy. Of course the issue before us is the degree to which these duties can best be reconciled.
It was encouraging that, as we have heard and as the JCHR report affirms, debates in the Commons saw changes being made to the Bill and commitments given to table further amendments as the Bill progresses through this House. The concern of Members of all parties to strike the right balance between the claims of security, privacy and liberty was welcome. We await sight of those amendments at as early a date as possible, and I hope that, unlike our experience with the Housing and Planning Bill of unblessed memory, we will be given the opportunity to consider in draft any proposed regulations before the Bill leaves this House. I especially welcome, as others have done, the Government’s acceptance that there must be a significant role for the judicial commissioner.
The two main areas which I wish to address are those of legal professional privilege—or as I would prefer to put it, client confidentiality, since it is not the legal professional who benefits as such from the alleged privilege—and freedom of the press, including the protection of journalistic sources, both of which featured in the list of matters identified by the Opposition in the Commons as requiring significant attention.
In relation to client confidentiality, as we heard from the noble Lords, Lord Lester and Lord Pannick, many Members have received the joint briefing from the three UK law societies, the Bars of England, Scotland and Northern Ireland, the Institute of Legal Executives, Justice and Liberty. Seven areas of concern are identified. These range from a bar on the targeted and bulk powers, as defined by the Bill, unless a judicial commissioner is satisfied that communications have been made in furtherance of crime, to protection for material when someone outside the UK communicates with a UK lawyer, the protection of data relating to privileged communications, and the extension of safeguards to the Regulation of Investigatory Powers Act, or RIPA as it is known.
The Joint Committee on Human Rights endorses the calls for change in this area, setting out proposed amendments to Clauses 25 and 100. Can the Minister indicate whether, and when, the Government will bring forward amendments to deal with these issues and indeed what view they generally take of the recent report of the Joint Committee on Human Rights?
In relation to press freedom and the protection of journalistic sources, the NUJ points to the potential impact on both journalists and their sources, in the latter case pointing out the risk to journalists who are in war zones or are engaged in investigating organised crime. While it makes a strong case, which I and others support, it would be enhanced if the conduct of the press itself had been above reproach, as the long-running saga that led to Leveson amply demonstrated. Nevertheless, the NUJ is surely right to aver:
“To have meaningful and effective protections for press freedom, the bill needs to be amended to offer a shield clause for journalists and this should apply across all of the powers that are specified in the bill”.
I recognise that it would be helpful to have a definition of a journalist. Would it, for example, include someone who undertook journalistic work while holding down another, full-time, job—for example, the previous Mayor of London?
The News Media Association joins the National Union of Journalists in calling for enhanced protection, as indeed does the Joint Committee in its proposed amendments to Clause 68, which would extend to journalistic sources the same protection as is currently applied to search and seizure under the Police and Criminal Evidence Act 1984. The committee, at paragraph 7.8, points out that,
“the applicant for authorisation is not required to give notice of the application to the media”—
an extraordinary departure from due process—while, under the Bill as it stands, the judicial commissioner need find only that there are “reasonable”, albeit in the circumstances untested, grounds,
“for considering that the requirements in the Act are satisfied in relation to the authorisation”.
To what extent are the Government prepared to move on these issues?
Different issues are raised in a briefing received at the weekend—I anticipate that other noble Lords will also have received it—from an organisation called techUK, which raises issues that in its view are likely to cause problems in relation to the storage of data and the costs to the industry, the latter not likely to be resolved by the stated intention that the Government will make an appropriate contribution that must “never be nil”—a remarkable turn of phrase which perhaps the noble and learned Lord can explain after he has been briefed on its meaning. I suspect that neither he nor I quite understand how that phrase managed to get its way into the Government’s response. However, more importantly, the organisation raises further questions about conflicting legal obligations, including EU regulations. The latter of course may not last for long for this country, but this is surely an area in which co-operation between jurisdictions needs to be preserved whatever happens following the referendum.
Finally and importantly, techUK asserts that the Bill threatens to undermine trust in the UK’s digital economy, with its 1.5 million jobs and 15% of GDP. To what extent, therefore, will the Government, including the Treasury and BIS, engage with the industry and indeed with the EU on these issues, and will they consider bringing forward amendments in these areas?
Lord Thomas of Gresford (LD)
My Lords, many concerns have been expressed in this debate—by my noble friend Lord Paddick and the noble Lord, Lord Blunkett, in particular—about personal privacy and the right to maintain a private life. However, I want to concentrate on legal professional privilege. It has been analysed brilliantly by the noble Lord, Lord Pannick, and my noble friends Lord Lester and Lord Macdonald, and I want to put some sort of colour to it.
Legal professional privilege is concerned with the public interest, not personal privacy, and it has been recognised as such since the 16th century. In criminal law, the individual is set up against the state. We prosecute from time to time and we are familiar with the power of the state to exercise surveillance and intrusion in the interests of arriving at the truth. On the other hand, defence lawyers are equally concerned with arriving at the truth. Something that some lay people fail to realise is that you do not win cases by putting forward defences based on lies. The immediate role of the defence lawyer is to impress upon his client the value of telling the truth, thereby building trust between him and that client.
What a defendant says at the beginning following his arrest may be completely untrue. Sometimes what he says has been suggested to him by other inmates in the prison where he is held on remand, or sometimes he will not tell the truth because of fear and sometimes because of guilt. When talking to defendants, I frequently say that if I were a doctor it would be no use if they had a pain in the head to tell me that they had a pain in their foot. I need to know the truth so that I can do the best for them. My noble friend Lord Lester was absolutely right when he said that defence lawyers might not know of a possible defence, and therefore the court and, particularly in a criminal case, a jury will not know that defence because the defendant, for reasons of his own, has not told his lawyer.
To illustrate that, I vividly recall a case in which I was involved in which the defendant—my client—was alleged to have shot somebody outside a nightclub in the presence of his friend. When, six days later, his friend was discovered also shot and my client had absconded and left the country, he was in trouble. His defence was that he knew that the friends of the person he had shot in the first instance were coming after him and they had shot the wrong person—they had shot his friend instead of him. The trial went ahead and he denied both the attempted manslaughter and the murder. He was convicted of both. We appealed because I did not think the conviction for murder was right. We failed and then, when I went to see him in the cells after the appeal, he told me, “Well, now I’ll tell you what really happened”. And for the first time I received from him an account that was completely consistent and believable. However, rather like a referendum, you cannot have a trial over again. That was it; that was the end of the case. He served a life sentence—and possibly is still serving it—for murder.
I am more familiar with the problems of client confidentiality in other jurisdictions. I recall one case in particular in a foreign jurisdiction, where the state was the other party, when we felt it was necessary to have our consultations and conferences standing in the middle of the swimming pool at the hotel in which we were staying because it was almost certain that our conversations were being bugged. Even in this country, involving a political issue in a foreign country, I recall that we talked to the wall as though there were people listening when the team met to discuss their tactics—for example, what inquiries were to be made and how we could support our client in the position that he was at that time.
So I am entirely with the noble Lord, Lord Pannick, in saying that when the commissioner is considering exceptional and compelling circumstances, the warrant must require—it must be shown—that there is a probable cause for belief in iniquity. Obviously, if a lawyer is colluding with his client in some shady business, that cannot be subject to legal professional privilege. I recall, in a very far-flung foreign jurisdiction, advising clients in a situation where the previous legal team had been arrested for attempting to bribe the prosecuting officers of that jurisdiction. We felt a little uncomfortable in the first place, but when something equivalent to half a million pounds in cash was put on the table in front of us in a plastic bag, we thought it was time to leave. So iniquity does happen; it is sometimes a temptation that is put in the way of lawyers.
I do not wish to carry on with further legal language such as “I once had a case”, so I will draw my remarks to a conclusion. However, I think the provisions in the Bill for legal professional privilege require considerable examination.
Lord Evans of Weardale (CB)
My Lords, as a former head of MI5 and a member of the RUSI panel that reported to the Government last year, I am pleased to welcome the Bill. We in this country have had statutory powers of interception for about 30 years and actual powers of interception for 400 years at least. Overall the statutory arrangements, which have been updated from time to time, have stood us in good stead. They have been a cornerstone of the work that the intelligence agencies have done since that time. It is largely as a result of that set of powers that the agencies have been able to keep our citizens safe from terrorism and other threats, and I am grateful to the noble Lord, Lord Strasburger, for the data that he provided to that end earlier in the debate.
They have also helped the police to prosecute many crimes, and that has been undertaken on a lawful and accountable basis. It was encouraging, for example, that the various inquiries that followed the revelations made by Edward Snowden, now in Russia, did not uncover any illegal activities by the British agencies. This appeared to be a surprise to some commentators, and in some cases a disappointment, but it should not have been because anyone who has worked in or with the agencies will realise that they set great store by operating on the basis of law.
Technology and public expectations move on, though, and the Bill will therefore propose a number of changes that I believe we should welcome. I suspect we will not need to make significant changes in the light of the referendum result last week. In particular, the Government have recognised the need to lay out more clearly the way in which various powers are actually used; I suspect there was a sharp intake of breath when that was decided, but in fact I think it was the right decision. As David Anderson rightly pointed out, the previous arrangements, though lawful, were, to say the least, opaque.
The powers in the Bill are necessary if the people in this country are to be able to live their lives in security, and I take as an example the use of bulk personal datasets. The use of such datasets has been the most striking development in investigative methodology that we have seen in the past 15 years, and as digital activity and life on the internet has become absolutely normalised, the use of bulk datasets has become a vital capability in enabling the agencies to make sense of the movements, associations and activities of potential terrorists and separate out the truly threatening from the background noise. It is right to make this capability and its existence clear and to ensure that the datasets are accessed on an accountable basis. There is nothing improper or alarming in using data for these ends, but it is better if we all know what is going on.
I also welcome the double lock authorisation model, which was one of the proposals made originally by the RUSI panel. It is important to keep Ministers in the authorisation loop, since the use of these powers is a matter of public concern and often of national security, which is a responsibility of government. But the judicial role can give assurance, if any is required, that Ministers are not abusing their powers. I may say that having been involved in the process of applying for warrants for 30 years at various levels within the security service, I am not aware of any case where Ministers tried to abuse their authority, but at least we will have that assurance.
Finally, it is important that in scrutinising this legislation we bear in mind that it must provide a framework to support fast-moving, complex and sometimes intensive live operations. Those using the powers on our behalf have to be able to move as fast as those who are planning a terrorist attack, importing a drugs shipment or procuring the online abuse of a child. This process cannot be mulled over at great length as operational requirements arise. I can remember in the period after the 21 July attacks in 2005, which was probably the most intensive period of warranted activity that the security service had then experienced, that all authorisations had to go through the deputy director-general for operations, who at that stage was myself. This meant that I was rung at all hours of day and night, 24 hours a day for several days in a row. I am glad to say that that exact procedure has subsequently been amended, but the principle that we are able to respond in real time to events and not to be held up by processes which are intellectually attractive but practically applicable is very important.
Bureaucracy and accountability are not the same thing. There needs to be clear and effective authorisation and oversight of these powers, but it needs to be done in such a way that the powers can still be used quickly and without unduly burdensome process. Thematic warrants may well fall into the category of activities that are needed for this purpose. One of the strengths of the British approach to these issues in the past, which has not always been achieved in other jurisdictions, has been to keep operational realities in mind and to create processes that provide oversight but do not bog the agencies or the police down in unending paperwork.
As we update the legislation governing the use of investigative powers, we should not lose that vital balance between accountability on the one hand and operational realities on the other. I look forward to taking part in the further scrutiny of this legislation in your Lordships’ House.
Baroness Browning (Con)
My Lords, I welcome the Bill. The amount of scrutiny it has received has been such a help in producing the Bill before your Lordships tonight. I was pleased to have the opportunity to serve on the Joint Committee, which was so ably chaired by the noble Lord, Lord Murphy. I was particularly pleased—comment has been made about this tonight—by the way in which another place dealt with the Bill. One of my permanent gripes is that we in this Chamber often receive legislation which is imperfect not because nobody at the other end was interested in it but because the iniquitous guillotine fell and huge chunks of legislation passed totally unscrutinised from another place to this Chamber. I opposed this vigorously when it came in many years ago—as Members will remember—but lost. I feel that if we are about anything in this Chamber, we are about scrutiny, but that applies also to another place. So it was not just that they spent a lot of time on it but that they looked at every line. I hope that perhaps future Bills will emulate that procedure.
On the Joint Committee we had the opportunity for a visit to the Metropolitan Police intelligence bureau. One of the things that struck me was that although a lot of our conversation was about how the Bill would help with serious organised crime and terrorism, we saw things in practice there—the noble Lord, Lord Evans, just touched on this—such as how having quick and timely access to data can help in ways that had not occurred to me. For example, when the police are notified of somebody who has gone missing who is a potential suicide case, or when a child goes missing and there is concern about them, access to telephones—a lot of children walk around with telephones and electronic devices—to be able to find out in a timely way where they are and who they have called saves lives, apart from the bigger issues that the Bill concentrates on.
Of course, among the people who came before us to give evidence, we heard from the judges. I support the double lock; it is a very good move forward to reassure the public and politicians. It is one of those measures that is perhaps tucked in the pocket just in case, at some point, this country could not rely on its politicians. I believe that we can rely on our politicians but—who knows?—maybe one day we will not be able to.
I was worried about the training of judges. Are these judges really going to get to grips with this subject, which is not something that they are dealing with every day? But I was reassured. I notice that my noble friend Lord Carlile of Berriew is not in his place at the moment, but I will draw to his attention that I said this. The judges reassured us that they would look at each warrant, case by case, and apply the rules of judicial review to give some reassurance on the way that they would approach their side of it.
It is also very important, perhaps more for the other end than for this end, that the Home Secretary can appear at the Dispatch Box and be questioned about individual warrants—something that a judge cannot be required to do. That is such an important part of our democratic process in this House.
Already mentioned is the way that technology moves and the way that our security services have to keep one step ahead all the time. However, there is another ingredient in the mix where our intelligence and security services need to feel that they are always one step ahead, and that is to do with political will. The intelligence and security services need to feel that, in these two Chambers, there is the political will to enable them to be able to access the sort of information and methodology that they need. As former Prime Minister Baroness Thatcher said, back in the 1980s, terrorists only have to be lucky once. It is against that backdrop that our security services need the support of this House to keep things well balanced. We must make sure that we give them every opportunity to keep us safe.
There are measures that have already been mentioned that we will need to look at. I know that my noble friend the Minister will be as forthcoming as he can be on the issues that have been raised about lawyers and journalists.
Finally, another area on which we took evidence in the Joint Committee, which has already been touched on, is the situation with the communications service providers. My noble friend Lady Harding spoke on behalf of what I regard as quite a large service provider. But we also took evidence from some of the smaller service providers, which expressed concern about the capital costs involved in this. So I hope that the Minister will be able to reassure us in Committee. It would not be a satisfactory outcome if, when we were finished with the Bill, it was public knowledge that some small companies were not up to speed and up to the mark in terms of people who might use their services. That would leave a gaping hole in our security. Just think what would happen if we ensured that the larger communications service providers could meet the standards required under the legislation but, somehow, those who wish us harm could go elsewhere.
Baroness Kennedy of The Shaws (Lab)
My Lords, I have to say that I have had one of the greatest surprises in the course of this debate that I have ever had in this House. That was hearing my noble friend Lord Blunkett express humility—humility in relation to his efforts to deal with terrorism and with the efforts of this House to call him to book when he seemed to be going over the line. I did not quite recognise whether there was regret, but certainly he seemed to acknowledge that scrutiny of the efforts to deal with serious crime and terrorism is a very important thing to take place within our parliamentary system.
I welcome the Bill because it places the work of the intelligence and security agencies within a robust legal framework. As others know, I have spent a large part of my professional life dealing with high-level security cases, often involving terrorism, such as the transatlantic bomb plot not that long ago, which was mentioned by the noble Lord, Lord Reid. These were serious cases in which new technology was used by those who stood trial and where being able to intercept was clearly vital to the interests, safety and security of British citizens.
The noble Lord, Lord Rooker, suggested that the RUSI panel’s 10 tests might in fact be placed inside a pamphlet or a paper by the Government to show how the Bill complies with them. I strongly support that suggestion and think it would be a very helpful reassurance to many of those who have criticised the steps taken to deal with these sorts of issues.
There is no doubt that we have to be always vigilant when we are dealing with the rights and liberties of British citizens. When private exchanges between individuals are invaded, there are consequences for all of us, not just the individuals involved, because societies that create a dark state, with extensive surveillance powers, have always in the end reaped the consequences: authoritarian abuse, serious miscarriages of justice, the growth of political mistrust which always follows, and ultimately a crushing of the human spirit. I agreed entirely when I heard the noble Lord, Lord Macdonald, describing what this does to the lives of individual people, the way that it invades the creative and intimate lives of people—the stuff of people’s souls. So we have to move ahead but with great care because sometimes invasions of privacy are absolutely necessary but they should be rare and under strict regulation.
The areas in the Bill that cause me most concern have already been spoken to. They relate to the protections that there must be for communications essential to the fairness of the legal system and communications essential to freedom of the media. A citizen has to have the right to confer with a lawyer in confidence; I will not repeat the arguments that have been presented to this House by my colleagues in the law. My life as a practising lawyer doing these sorts of high-level, politically sensitive cases has made me pretty cautious about claims concerning national security because that can be an elastic notion, capable of being harnessed for questionable ends.
I am concerned that the definition of “exceptional and compelling circumstances”, and the draft codes of practice that have been put together, set the bar too low. These can be broadly and loosely interpreted and the risk is that the law will enable and encourage the routine acquisition, examination and retention of legally privileged communications. That should concern us. Currently such a practice is deemed unlawful but we know from the Belhaj case in 2015 that at times that has not stopped inappropriate behaviour. We should always remember that codes of practice are not law. They do not have legal force and they can be changed without parliamentary scrutiny.
What should concern us is that when the Government were pressed in Committee in April about what they really intended, and they gave examples, they seemed to say that the purpose was to obtain strategic intelligence. That is just not a justifiable reason for this legal change. It is, I am afraid, dancing to a tune that is not acceptable in a democratic society. We cannot allow it to be used to interfere in privileged communications between lawyers and their clients simply because there might be a possibility of coming up with something. There has to be something more than that. The Law Society, the Bar Council, Liberty and Justice are all pressing for amendments. The Government have said that they will listen and I hope they will.
I am also concerned about journalists and the protection of sources. I agree with the noble Baroness, Lady Liddell. There are problems because of the expansion of journalism into the internet, the arrival of blogging and the ways in which people claim the title of journalist who would not have fulfilled that definition in the past. However, we have to be cautious about enabling journalists to make the public aware of things that are happening in society which has to involve their giving promises of protection to their sources.
I welcome the fact that David Anderson has been invited to review the use of bulk powers. Like the noble Lord, Lord Lester, I think he is a truly honourable man. He has an independent mind and is an invaluable public servant. I am glad that he is responsible for the review and I look forward to hearing what he has to say.
Clause 1 re-legislates the criminal offence of hacking telephones that saw the conviction of the Prime Minister’s press secretary for conduct when he was the editor of the News of the World. Nine other senior journalists at more than one newspaper—indeed, at more than one newspaper group—were also convicted. There were hundreds, if not thousands, of victims of that criminal conspiracy, many of whom were ordinary members of the public whose privacy was grossly intruded upon in a wholly unacceptable way. It is right that that offence is re-codified in the Bill. It is not only the state that intervenes in people’s privacy.
Many victims of phone hacking have taken out civil claims based on the common-law tort of misuse of private information. The old RIPA included in Section 1 a statutory tort but that has not been re-codified in this Bill. Why will citizens not have that entitlement any longer? I hope the Minister will help us with an answer to that question and perhaps the tort may be reinserted in the interests of fairness to those victims.
As we have heard, striking the balance between liberty and security is hard. The best way to do it is with trusted oversight and transparency. I welcome the openness of the Government in seeking to meet the concerns and I look forward to the debate in Committee.
Lord Oates (LD)
My Lords, it is intimidating to follow so many noble and learned friends on my own side, let alone all around the House, but I am grateful for the opportunity to speak in this debate because, over the five years that I worked in the coalition Government, we wrestled with many of the issues that this Bill attempts to address. We recognised that our society faces real threats and that it is the duty of the Government to address them.
The then Deputy Prime Minister for whom I worked took that responsibility extremely seriously. He never had the slightest patience with those who dismissed these threats or opposed necessary proportionate and workable measures to counter those threats for ideological reasons. He was committed to ensuring that the security services had the powers they needed and he supported legislation where there was an evidence-based case for it, such as the Data Retention and Investigatory Powers Act 2014. He opposed legislation, such as the draft communications data Bill, where there was not. He was as impatient with those who were careless of our liberties as he was with those who were careless of our security.
I share the approach that he took. I do not see liberty and security as items to be weighed against each other on opposing scales but as principles essential to reinforcing each other. There is no liberty without security but, equally, no security without liberty. Anyone who has lived in a country where the authorities are constantly monitoring what you do, and where they think that they have the right to interfere with your liberty, will know just how insecure that makes you feel. I have no doubt about the threats we face or of the suffering brought about by terrorism, child exploitation or any of the other heinous crimes that the police and intelligence services have to tackle. I was lucky enough to work alongside members of the intelligence services in the previous Government and I have nothing but admiration for the work they do on our behalf and the way they go about it.
I welcome the fact that the Bill is a considerable improvement on the existing arrangements. It covers previously unavowed powers and contains significantly greater safeguards and oversight than had previously been present. It is particularly welcome that it has dispensed with the proposals in the draft communications data Bill that UK network providers be forced to collect and store third-party data relating to services operated by companies overseas.
At the time of the communications data Bill, we refused to agree to such a proposal because no one could make a credible case for it. In the absence of evidence or argument, it was simply asserted that if we did not agree to such a proposal, public safety would be put in jeopardy. Without a shred of evidence to support it, people who should have known better—including some Members of this House—went on television to castigate the then Deputy Prime Minister in the most lurid terms, accusing him of putting lives at risk.
Of course, subsequently, the highly respected Independent Reviewer of Terrorism Legislation, David Anderson QC, investigated the issue and could not have been clearer in his report that he found that no operational case had been made for the power and that,
“there should be no question of progressing this element of the old draft Bill until such time as a compelling operational case has been made”.
It is with that experience in mind that I am sceptical of demands for powers which are not backed up with evidence and which Ministers seek to push through simply by making an assertion that they are necessary for public safety.
While I welcome many parts of the Bill, it is in that context that I regard the retention of internet connection records as an issue of grave concern. The Home Office failed to make an operational case for it. The Government have not approached the issue by demonstrating where a lack of data is obstructing criminal investigations and then exploring how to tackle it. They have taken a proposal that the Home Office has been pushing unsuccessfully for nearly 10 years—perhaps more—and stated that the data would be useful for the police and intelligence services. That is not evidence-based policy-making; it is policy-based evidence-making and we should not accept it unless we have some much better answers than the Home Office managed to provide in the other place.
As my noble friend Lord Paddick highlighted, the Bill establishes a power for the Government to demand the retention of the internet connection records of every single person in this country for a 12-month period in case the state might wish to interrogate those data at some future date. It allows access to the huge amounts of data that will be collected by designated persons without a warrant. It is a very significant power for the Government to demand, a power which outside Russia is operated by no even nominally democratic country in the world. As my noble friend pointed out, Denmark, which operated such a system, has abandoned it, as its security forces were drowning in information they could not process. The scale of data retention under this proposal will be massive. The storage of such a vast amount of personal and private data will be a honeypot for hackers and risks compromising the privacy of millions of innocent people.
Many noble Lords have rightly made the point that the measures in the Bill have been subject probably to greater parliamentary and independent scrutiny than any similar measures that have come before Parliament, and the Government have made many welcome changes. I note in passing that this scrutiny and these changes have been possible only because people in the previous Government would not accept the imposition of measures without scrutiny and an evidence base and insisted that it be provided.
But despite all the parliamentary scrutiny, the public are almost wholly unaware that when this Bill is enacted it will mean the retention of everyone’s often highly personal internet connection records for a period of 12 months, under conditions of security which are unclear. When this power is put to members of the public, the evidence is that they are almost universally horrified by the potential threat it poses to their privacy. We should take that extremely seriously and we should be extremely cautious before we grant such a unique power to our Government. Neither should we lull ourselves into a false sense of security about what security this data can actually provide for us. We should not be naive enough to ignore the fact that those who wish us harm, such as Daesh, are unlikely to be troubled by such a power; they have plenty of ways to mask their activities.
So I hope that we will proceed with caution rather than complacency before we grant the power. In particular I hope that the Government can answer a number of questions. What exactly will ICRs cover? How will the ICR requirements operate in respect of communications on mobile devices via apps? What is the scope of the information they will provide? Where will the data be stored and under what conditions of security? Also, how is it sustainable for the Government to claim that these vast amounts of data can be stored and accessed securely at such a comparatively minimal cost? How is the figure calculated and is it not likely, as it is so often in these cases, to be exponentially more expensive than originally estimated? Lastly, why is the Home Office demanding a power that none of our allies appears to believe is proportional or necessary? We need answers to these questions before we proceed with this part of the Bill.
A number of other important issues in addition to ICRs have been mentioned today, in particular legal and professional privilege, bulk data collection and issues of extra-territoriality. All are areas that we will need to consider carefully during the future stages of the Bill. Finally, we should be wary of creating too cosy a consensus on this Bill lest that dulls our skills of scrutiny when there are very serious issues still to consider.
Viscount Colville of Culross (CB)
My Lords, I declare an interest as a producer at the BBC. I congratulate the Government on bringing this Bill before the House. Like most noble Lords I recognise that the security services need up-to-date powers in their technological battle against terrorism and criminality, and I am pleased that these extraordinary powers of surveillance will now have judicial control. I am sure that the interception of digital communications will help prevent much terrorism and that many criminals will be convicted using the evidence collected.
However, there is a whole area of information gathering which must be safeguarded by privilege. Noble Lords have spoken about the importance of privileged information between lawyers and their clients and between MPs and their constituents, so it is not surprising that as a journalist I want to put the case for extending the privilege of safeguarding journalists’ sources of information. I look forward very much to the debate in this House on defining what is serious journalism, and who and what information should come under journalistic privilege.
I appreciate that the Government inserted an amendment into the Bill in the other place requiring the judicial commissioner to have regard to the public interest consideration for requests to investigate communications data for a source of journalistic information, but I fear that this privilege is far too specific. It applies only to requests to search directly for “journalistic sources” and from only one power in this Bill: that of communications data. But there are many other powers in the Bill which could directly or indirectly identify a source. I should like the Bill to extend the public interest consideration for any request to access journalists’ data to cover other methods of surveillance, including the accessing of internet connection records and equipment interference, both of which could identify whistleblowers.
I very much appreciate the powers in the Police and Criminal Evidence Act 1984 which allowed notification to journalists and media organisations of requests to access journalists’ notebooks so that they can respond to those requests. I would like the Bill to mirror those powers in some way and to extend that notification to cover some warrants to access journalists’ data so that they and the media organisations can make representations to protect their sources. I know only too well from my own experience and that of colleagues how important it is to guarantee protection for sources when uncovering cases of wrongdoing. I am certain that in many cases we would not have the information unless the sources were convinced that they were safe from having their identity revealed to their bosses or other authorities when reporting cases of wrongdoing.
I have been speaking to a number of my colleagues who have been involved in extraordinary investigations whose publication has shocked the nation and led to changes in the law and policy, and huge reforms to the institutions that have been investigated. Two stand out for me: the “Panorama” investigations by my colleagues at the BBC into Winterbourne View care home and the Medway Secure Training Centre, both of which have been mentioned many time in your Lordships’ House.
Winterbourne View was a care home, commissioned by the NHS and managed by private providers, to care for adults with learning difficulties. The “Panorama” investigation revealed that a lack of leadership led to a regime of barbarity against the patients. I fear that, unless the programme had been broadcast, nothing would have happened to address this abuse. Margaret Flynn in her report on the home said:
“There is no evidence that the written complaints of patients were addressed … managers did not deal with unprofessional practices at Winterbourne View Hospital. Absconding patients, the concerns of their relatives, requests to be removed and escalating self-injurious behaviour were not perceived as evidence of failing service. The documented concerns of whistleblowers made no difference in an unnoticing environment”.
There were 29 contacts with the police and eight incidents of staff violence on patients were reported, with only one prosecution. The police now admit to over reliance on information from hospital management. For years, nothing was done to deal with the underlying abuse. In desperation, whistleblowers went to my colleagues at the BBC. One was later named, but others have not been to this day. Their determination to remain anonymous is not surprising, as they know that they would never work again in the industry if their names were released—but the information they gave meant that, finally, something was done to change the regime and safeguard the patients. During the “Panorama” investigation, whistleblowers were able to build up a relationship of trust with the journalists. That trust was predicated on the conviction that the authorities would not be able to identify who they were.
Likewise, whistleblowers were essential to uncovering the abuse of young men jailed at the Medway Secure Training Centre, run by a private company for the Ministry of Justice. An independent panel to investigate the centre has revealed that over seven years 35 written warnings about the regime at the centre were not acted on by the National Youth Justice Board. Once again, in desperation whistleblowers contacted my colleagues on “Panorama”. Some had previously gone to the authorities to complain and no action had been taken; others contacted the journalists directly. For most of them, and certainly the main whistleblower, whose name is still not known, the only basis on which they went to the journalist was the promise that nobody would ever be able to identify them. Their testimony and the subsequent secret filming revealed a regime of extreme barbarity against the young men at the centre, which brutalised them—the very opposite of what the centre was supposed to do. The mother of one inmate, Billy, said, “My boy is no angel, he is difficult, but this is going to make it worse”.
As a result of the Winterbourne View investigation and others into care and disability units across the country, the Care Quality Commission was reconfigured and the charge of corporate neglect entered our statutes. Safeguards for people in these units have been established across the country. As a result of the Medway exposures there have been parliamentary debates, at least 10 arrests, guards have been suspended and the unit director has resigned. G4S has announced that it is selling off its children’s services and the centre has been nationalised. These cases are proof of the extraordinary role that whistleblowers can play in revealing wrongdoing and changing our country’s landscape. As my colleague Joe Plomin, the journalist behind these stories, told me:
“We threaten the confidence with which whistleblowers contact me at our peril—how will we as journalists prevent the abuse of children or disabled people or others in future where all authorities including the police have allegedly failed, if whistleblowers feel unable to safely, securely contact us? Our democracy, all of our safety depends on people being able to speak to us where all else has failed”.
I ask your Lordships’ House to do everything possible to ensure that this Bill guarantees their secrecy and allows journalists to explain to the judge the public interest reason for that secrecy to be continued. This need is reinforced by the many occasions when the authorities, and especially the police, secretly obtained journalists’ records. The report of the Interception of Communications Commissioner’s Office in 2015 into the use of Chapter II of Part 1 of the Regulation of Investigatory Powers Act to identify journalistic sources showed that police had secretly obtained the phone records of 82 journalists over a three-year period to find confidential sources. It said:
“Generally speaking the police forces did not give the question of necessity, proportionality and collateral intrusion sufficient consideration. They focused on privacy considerations … and did not give due consideration to freedom of speech … The current Home Office Code of Practice (and the recently revised draft Code said to provide protection for sensitive professions) do not provide adequate safeguards to protect journalistic sources or prevent unnecessary or disproportionate intrusions”.
I, like all noble Lords, have the highest regard for our forces of law and order. I am sure that they will think that they have compelling reasons for investigating a journalist’s records, but I would like a judge to decide whether the reasons are in the public interest. It is important that the judge, deciding on a warrant for journalists’ data, should have to notify them so that they can at least put their case for the need for the absolute confidentiality of sources to be maintained.
Lord Henley (Con)
I support the Bill, and I have to say that, in all my years in this House, I do not think I have ever seen a Bill that has had better and more thorough scrutiny as it has passed through another place and various committees.
I served on the Joint Committee that looked at the draft Bill under the very skilful guidance of our chairman the noble Lord, Lord Murphy, and I thank him for the work he did, particularly given the very difficult time constraints. We only started sitting in November and had to produce a report by February. Others have gone into the amount of time we spent on that Bill, the amount of written evidence we received and the number of witnesses we saw. We can only offer praise to the noble Lord for what he did on that Bill. I hope the Government take note of that.
Others who have spoken in this debate also served on that committee and there is no need for me to add any more; however, I also served on the Joint Committee on Human Rights, along with the noble Baroness, Lady Hamwee. She will no doubt want to say a little more about that in due course, as will I. I should also add that I had the privilege of serving as a junior Minister with my right honourable friend Theresa May, the present Home Secretary—where she will be in a number of weeks or months, we do not know, but I hope she at least sees this Bill through—as did my noble friends Lady Neville-Jones and Lady Browning.
I say in passing—this is not related to the merits of this Bill—that I believe that my noble friend Lord Howe and my noble and learned friend Lord Keen will do the most excellent job in taking the Bill through this House. I would normally like a Bill to be represented by its own Minister as it is taken through, rather than by people who have come in from other departments. This is not simply a question of propriety for propriety’s sake, but one that goes to the heart of how this House performs its duties and functions. My noble friend will remember that we served together on the Front Bench, in government and in opposition, for some 20 years. Indeed, he has been in this House on the Front Bench, government and opposition, for some 26 years. He will remember that, particularly in the 1990s, we often had to speak for other departments. Seeing my noble friend Lady Chalker here, I remember on occasion doing Foreign Office Questions for her when she was away on important business, when I was serving in other departments.
However, when it comes to Bills, it is very important that the Minister in question should be properly embedded in that department, so that everyone knows they are a Home Office Minister, for example. It is they who have day-to-day access to the civil servants; it is they who have seen the Bill develop, and probably played a part in that development. They will know better than a Minister from outside exactly what is in the mind of the Secretary of State and what she is thinking. As I said, he is seeing the civil servants on a daily basis. He is no hired gunslinger brought in from outside to get the legislation through but part of the team that has developed the Bill. I hope that my noble friend will not mind my making that brief point as it is important. I hope that whoever the leader will be in the future will take note of that when ministerial posts are allocated.
As I said, I do not want to say anything about the Joint Committee that looked at the draft Bill under the noble Lord, Lord Murphy. However, I wish to comment briefly on the work of the Joint Committee on Human Rights. As noble Lords will be aware—this has been referred to—the Joint Committee managed to produce a report on the Bill before another place reached Report. I think the report was dated 2 June. It made a number of recommendations which influenced the debates on the Bill on Report in another place. I think that various amendments were made. As noble Lords who have had a look at the report will be aware, it proposes that the Joint Committee table further amendments at later stages of the Bill. Certainly, the Joint Committee will be looking at those. Therefore, I would be very grateful to my noble and learned friend Lord Keen if he could say a little more about the Bill’s timing when he winds up than did my noble friend in his opening speech. We know that we will have four days in Committee before we break up for the summer. We will then have a further two days in Committee in September, which will allow us to look at the report by David Anderson QC into bulk powers. I take it that we will then come to Report at some point in October—presumably the second half of October. However, it would be useful if my noble and learned friend could confirm that so that we on the Joint Committee can consider those matters in time to produce yet a further report among the many other reports with which both Houses have been burdened—however, those reports have been useful—before this House considers those matters.
Lord Reid of Cardowan (Lab)
My Lords, being the 36th speaker in a Second Reading debate has some advantages and disadvantages. The advantage, of course, is to be able to listen to and, I hope, learn from the substance and detail of the points that have been made. I have tried to do that this evening—other than when I have been called away to another fraternal Parliamentary Labour Party meeting. The disadvantage, of course, is that almost everything has been said. Therefore, I will confine my remarks to two or three simple points which I freely admit do not arise from my understanding of jurisprudence, expert legal training or philosophical depth but from my experience as a practitioner in government. I admit that I have authorised and used intercepts—I hope for the benefit of the people of this country—and, therefore, I wish to say a few words about necessity and proportionality and perhaps a little about scrutiny.
Why do I think that the Bill as a whole is necessary? Of course, details of it will have to be discussed and debated but in my view it is necessary because I have seen at first hand thousands of British citizens’ lives saved not only by intercept but largely by intercept and intelligence based on intercept. Leaving aside when I was Northern Ireland Secretary, when I was Home Secretary I dealt with some 40 to 60 cases of counterterrorism of greater or lesser significance. Almost all of them involved more than one country. I recollect one case where there were almost 20 countries. It is not only the interception of communications, but the global nature of the communications which are now an essential field for interception if we are to protect the lives of British citizens. In one case, which I mentioned earlier to the noble Lord, Lord Strasburger, the potential victims numbered 2,300 to 2,400. There were seven aeroplanes involved in the plot which was foiled in August 2006. Without going into detail, we were watching, at various stages, minor actors in that tragic drama. It was only through intercept, and some of the powers enshrined in this Bill, that, fairly late in the day, we discovered that we were looking at a subset and the main players were actually somewhere else. It is practical experience which has convinced me of the necessity for this type of power, not in every detail but in general.
Secondly, I do not think proportionality can be discussed unless we see it in the context of two things. One is the threat, and the changing nature of it. The other is the changing nature of communications. Both of these have been touched upon today. In other words, the objectives of the intelligence agencies, Ministers and the counterterrorist authorities have not changed; what has changed is the world, and particularly the nature of the threat and the nature of communications. As we know, the threat now stands at the second highest level—severe—which means that a terrorist attack is “highly likely”. That is not my view but that of the analysts and the authorities who decide these things. As the noble Lord, Lord King, mentioned at the beginning of this debate, the nature of the threat has changed even from 15 to 20 years ago. The threat from the IRA was big enough but they did not tend to want to blow themselves up or be caught. That change makes it much more difficult and reliant on prevention through previous intelligence. In 2014, some 10,000 Europeans went to Syria as jihadists. It is estimated that about 5,000 of them have returned to Europe. In Britain, the numbers are roughly 800, with 400 returned. Last year, the intelligence services foiled seven major plots here, 13 in France and various others throughout Europe. Where they did not succeed, we saw the tragedies of Tunisia, Brussels and Paris. Proportionality has to be seen against that background.
The world of communications has changed. As several noble Lords have said, we now live in a cyber world. Cyber is not an amalgam of technologies. It is not just a means of communication. Cyber is the first man-and-woman-made environment. It now permeates absolutely everything. It gives unparalleled opportunities for people to reach out for education and information; it has an amazing potential to liberate human beings. However, like all forms of technology, it has an amazing capacity to be used for evil as well. It is the communication method of choice for terrorists who would do evil—I am responding to this only in terms of counterterrorism.
I remember using one of the first digital phones, back in 1985 on a march from Gartcosh to London. I was given it by a press organisation that wanted to cover the march for jobs. It weighed as much as a brick; it looked like a brick; it was as useful as a brick. You had to charge it for 12 hours to get 20 minutes off it. Now, between 3 billion and 4 billion people in the world are using the internet on mobile phones for communication. They are the communication method of choice for the terrorists themselves. Although it brings unparalleled opportunities for good, it also does for bad. We have to empower the intelligence agencies and those trying to counter the use of that internet technology not just for communication purposes but for propaganda, recruitment and radicalisation purposes as well.
While I have no doubt about the proportionality of the generality of the Bill, my final point is about oversight and balance. I am sorry that my noble friend Lady Kennedy is not in her place because she said earlier on that she had been surprised by the humility of my predecessor, my noble friend Lord Blunkett. Well, it is a lucky day as I was going to give her a surprise as well.
Lord Reid of Cardowan
My noble friend Lord Blunkett is here. I do not think that he heard my noble friend Lady Kennedy’s comments but I have a surprise for her. I do not take the view that security overrides everything. I take the view of a need for balance. Various people have mentioned tonight that the protection of our citizens is the first duty of government, but that is a mistranslation. With my O-level Latin, I can tell your Lordships that Cicero’s “Salus populi suprema lex esto” does not mean that that protection is the first duty of government but that the welfare of the people is their first duty. That welfare combines the protection of their rights and well-being with the protection of their lives, which is why we are trying to get a correct balance on this.
I am all for examining the Bill in detail in Committee, including legal professional privilege, issues about journalists and so on. But I would plead with your Lordships: I cannot think of anything that I have seen going through Parliament, in my 30 years or thereabouts, that has had quite so much scrutiny. I therefore hope that it will get a fair wind, because of not only that prior scrutiny but that which is to come from David Anderson as well—and because of our obligation to supply the tools to our intelligence agencies and those trying to protect the people of this country.
Having said that, I have one reservation, which is about the introduction of judges to a greater degree than was previously the case. If the double lock becomes a double decision-making process on the substance of the political decision, I would be very worried. I understand why the Home Secretary did it and the perceptions in certain sections of the public—not what I would call public opinion but certainly published opinion. It therefore became a necessary element of making sure that there was a fair wind behind this Bill. I accept that, but I have some reservations with it. So, with all that, I wish the Bill well and I congratulate the Secretary of State for the Home Office. She has been extremely patient. This has been in embryo not for two years but for almost 10 years, through various people. I wish her well in her present job and in any job that she may be seeking to do in the future.
Baroness O'Neill of Bengarve (CB)
My Lords, as the very last Back-Bench speaker I might not have much to say but I have one thing to say at the start: it seems rather a good day for this Second Reading because the Bill bears on UK national security. I therefore hope that, unlike some current Bills, it will still have adequate government support amid the political disarray. I am not sure whether the UK break-up party, formerly known as UKIP, would agree but there is just a chance that the UK has a future. Your Lordships will understand that I come from Northern Ireland, while several noble Lords here come from Scotland. We are worried that there is no such future. However, even in the event of break-up there will still be an interval after the current legislation expires in December during which the security of the UK remains a proper concern for us in this House and this Parliament—and thereafter, who knows?
The Bill comes to us after extensive preparatory work, which has been much mentioned. I, too, declare an interest as a member of the Royal United Services Institute working party that produced one of the reports before the parliamentary scrutiny began. However, further consideration is still relevant, because these are complex matters.
Like many noble Lords, I think that the fundamental architecture of the Bill is sound. There is good reason why the rights to liberty and security form a single right in the European convention and elsewhere. Liberty and security are inextricably interconnected and are matters that must be specified in ways that are mutually qualifying. It is also good to see the right to privacy—of course another qualified right—taken so seriously.
One of the reasons why it is so hard to draft good legislation in this area—and on this occasion I must congratulate the parliamentary draftsmen on the Bill and the excellent Explanatory Notes, which is something I do not often say—is that so many people start with quite obsolete views of what is at stake. Many people imagine that what has to be controlled and regulated is surveillance or intrusion or spying or, to use a well-known word that has been mentioned already, snooping, hence the populist phrase “snoopers’ charter”. That view is archaic. Of course there are still episodes of snooping and intrusion, but what we are trying to regulate in the era of big data is inference, and that is much harder. We are trying to regulate moves that enable inferences to be drawn.
It can be helpful to keep three rather simple questions apart. The first question is: are other people actually gaining access to private data about me? That is the sort of question that worries people, and the answer is usually not and, in particular, not to information that those other people are going to know is about me. The question perhaps reveals either a bit of paranoia or a bit of vanity, but it is quite common.
The second question is, “Can people gain access to private information or data about me?”, and the answer is that usually they can. They do not, but they can. Mostly, of course, they will not realise the data are about me. They can, and that is true not just of the security services but also of many others, and I will come back to that.
The third question is the one we are dealing with and is: may people gain access to data about me? It is only this third question that the Bill seeks to address, and then only with respect to a limited range of public bodies. It seeks to regulate the investigatory powers of the police and the security services assuming that possibilities of inference, and so of disclosure, have been multiplied by the new technologies. The Bill does not seek to regulate the same activities when undertaken by other parts of the state or by non-state actors, such as internet service providers or the media.
There are therefore parallel questions, and I want to raise one, which other noble Lords have also raised, about the media. Many of us have received briefings from the National Union of Journalists about special protection for journalists so that they do not have to disclose their sources and are protected from investigation. I understand very well the concern that this raises, and my noble friend Lord Colville spoke very eloquently about it just now, but I am worried about whether it can be effectively drafted. The Bill currently provides for two special cases of privileged exemption from investigation: for legislators and for legal professional privilege. Both are quite controlled exceptions. We can tell who is a legislator and who is lawyer and when a lawyer is engaged in the relevant discussions with a client. I expect that a claim for journalistic privilege may be tabled, and I wonder whether Her Majesty’s Government have thought about the issues that should be approached and the questions that should be answered. Is every blogger and tweeter a journalist? Other noble Lords have raised that question too. If not, where is the line to be drawn? Secondly, what protection would Her Majesty’s Government think appropriate to prevent the use of claims of privilege in cases where, unlike the Winterbourne investigation, there is no source but only fabrication? Does not freedom of public debate depend on the possibility of testing media claims? Does soft power too need to be accountable?
This is not the Bill to address these issues, but they need addressing. There is a need to address parallel issues about intrusion into private matters by non-state actors, including businesses and the media, that use these new and powerful forms of data analysis. I believe that the new data protection regulation that has finally completed its passage in Brussels is a rather superior document to the data protection directive on which our Data Protection Act is based. It is a pity of course that it does not come into force until 2018 and that we may not have the benefit from it.
My final word is on whistleblowing. Whistleblowing is not a matter of sending poison pen letters: good whistleblowing works when there are proper structures in which there is a confidential intermediary who receives the whistleblower’s message. The media are not the people to handle good whistleblowing. We need, on the contrary, to require major institutions to have proper whistleblowing structures. Some do and many do not—it could be done.
Baroness Hamwee (LD)
My Lords, my noble friend Lord Paddick remarked to me the other day that investigatory powers should be intelligible to a 70 year-old computer-illiterate grandmother. I did wonder whether he was talking about me—although I have to say none of those characteristics applies—and was also quite concerned that he thought 70 was old, but I realised that his comment was very apt. Transparency does not mean being able to see through something but means that you should be able to see the thing itself, and know it and understand it in the context we are discussing. Every Bill throws up its own lexicon: transparency is one item in it for this Bill, as is balance, which has been mentioned several times tonight.
I am not sure we should be in the business of “balancing” privacy and security. The term “binary” has become quite common, but for these Benches, privacy and security are not binary or mutually exclusive—a point I think the noble Lord, Lord Rosser, made right at the beginning of the debate—and our aim must be to achieve both. However, we are bound to discuss privacy more than security, not least because of the old dilemma, which my noble friend Lord Oates referred to, of what an Opposition, the public and perhaps also Ministers can say in response to, “If you knew what we know”. My noble friend Lord Strasburger made a very big ask of Ministers about unacknowledged knowns and indeed unknowns. I do not want to avoid acknowledging the crucial importance of security, so will say that we are part of what RUSI called the,
“near-consensus in public opinion that there are circumstances in which law-enforcement agencies … and security and intelligence agencies require sensitive capabilities to obtain communications in order to safeguard national security, investigate crimes and protect the public”.
But that is the beginning of the story—my words, not RUSI’s—not the end.
Ministers must be in an unenviable position. It must be hard to have the agencies saying, “Yes, please”, to more and more information—of course they will say that. But does quantity affect quality and workability? I confess I have long had a mental block about these issues. I am not computer-illiterate, but neither am I very computer-literate. My lightbulb moment—or one of them, the other coming when I read the Library Note, which, I should like to put on record, was admirably clear—was when I realised that it was not entirely my fault that the technical language was blocking my thinking about the underlying issues. Language should clarify, not impede, debate and scrutiny. That is not a criticism of the drafting of the Bill, but more of the commentary around it.
There is a consumer rights issue in this as well. It is very odd and disconcerting that after you casually look something up online, you are prompted to pursue it by advertising of the product or service. I say to the noble Baroness, Lady Liddell, that I am not exalted. I appreciate the commercial realities of this, but how many people realise that in the small print, which they did not read, they have consented to information being passed on to third parties? What do you do if you read it and do not like it? Do you cut yourself off from an essential modern tool? Public services, which we are talking about—not commercial services—must be better than that.
It is particularly important to me that the citizen, who is more than a consumer, is made aware of having been subjected to the use of powers. You may be part of a large group targeted—I use the term technically—although not suspected. I say that because the corollary of the right to know is the right to challenge. Those who are entrusted with oversight need the structure and criteria that enable them to make a proper assessment.
I still have a problem with the judicial review principles, and indeed I wonder whether the filter provided by the Bill is just another mechanism to collect information, but we will come back to all that.
In the Commons, the Government made a number of commitments to consider further amendments, including commitments made to the chair of the Intelligence and Security Committee, and the noble Earl referred to several amendments that we may expect. It is important—I hope we can hear this tonight—that the House knows from the Government when they will publish their amendments or, conversely, that they inform us that they will not propose amendments on the issues they have raised and on which they have given assurances that they will consider various matters.
The Joint Committee on Human Rights—like the noble Lord, Lord Henley, I am a member—has also reported. As the noble Lord said, “due course” will bring more comments on that. The committee acknowledged that the Bill represents a significant step forwards in human rights terms, but many human rights are engaged—privacy, freedom of expression, the protection of personal data, and freedom of association, assembly, religion and movement—and any interference must of course be in accordance with the law, not only with a clear legal basis but sufficiently specific to guarantee against arbitrariness. It must also be necessary in the pursuit of a legitimate aim, as well as being proportionate. I agree with my noble friend Lord Campbell and the noble Lord, Lord Reid, that this is not a constant: life changes. That leads me to the adequacy of the safeguards, especially as the regime has not been given the cleanest bill of health by a clutch of UN special rapporteurs or the Council of Europe Commissioner for Human Rights.
However, it is not only the legislation but how the powers are used that is critical. For me, the codes of practice are less important to this debate because, as has been said, they are not amendable by Parliament, and indeed Parliament is dependent on others to check compliance with them. There is a limit to the Executive’s accountability. Accounting for one’s actions is empty if the actions themselves are not explained. As I understand the Bill, the Executive’s own proposals gag the Secretary of State with regard to that accountability.
The safeguard of and public interest in, as my noble friend Lord Thomas of Gresford put it, legal professional privilege is something that I feel particularly strongly about as a lawyer, although I have never had to get my feet wet in the cause of it. As we are all potential clients, it was predictable that it would receive a lot of attention today, and it will receive a lot in the following stages of the Bill. By some distance, we have not yet dealt with the issues of what my noble friend Lord Lester called the potentially chilling effect.
Similarly, as a politician and a citizen, I am concerned about safeguards for journalists and journalistic material. That may be the definition to pursue, but I acknowledge that there are difficulties around definitions. Journalists’ work may not all be in the public interest but much of it is, and there is a clear public interest in protecting journalistic sources. There will be a number of issues to cover, particularly internet connection records, from the point of view of service providers as well as the public. The noble Baroness, Lady Neville-Jones, referred to the intelligent and constructive engagement of the providers, and they still have significant concerns. I was interested in the points they made in briefings about extraterritoriality and the international regime, or lack of it.
And we will have the review of bulk powers, which, as the Minister says, will become more important than ever. The terms of reference for the review make it a matter for the Prime Minister as to whether the review is published. I think it would go against the spirit of the review if it were not. Tributes have been made, and rightly so, to David Anderson. I wonder, who would be David Anderson? What a responsibility we place on his shoulders. It is not for us to comment on Commons procedures, but Members of the House of Commons will not have a chance to propose amendments to the Bill in response to the review of bulk powers unless we amend it and give them that chance.
When the draft Bill was published, I worried that I was not sufficiently worried. Over the years, talking on the phone to a friend whose work has been closer to the security world than mine has ever been, we have joked about some odd interruptions and noises and said things like, “I hope whoever’s listening finds this interesting”. However, when I realised that the regime extends from what I do to who I am—my legal secrets, as my noble friend Lord Macdonald put it—my concerns fell into place. My noble friend Lord Carlile’s phrase “the legitimacy of use” is very helpful here. As I say, we will focus on internet connection records.
I said that our task is about achieving privacy and security. The next few months will be turbulent politically. Where we will end up, who knows? This certainly suggests to me that perhaps we should not wait five years for a review of the Act that this will become. Whatever the turbulence—or “disarray”, which was the rather more polite term used by the noble Baroness, Lady O’Neill—we must not be diverted from the task in “the age of anxiety”, in the phrase of the noble Lord, Lord Hennessy, and, in that of the noble Baroness, Lady Harding, in the “civilised digital world”. It is an important task.
Baroness Hayter of Kentish Town (Lab)
My Lords, we have had a rich stream of expertise today, including from those who have served on the pre-legislative scrutiny committee as well as on the ISC and the Joint Committee on Human Rights. We have heard from colleagues who have operated the powers over security or crime, from colleagues who are expert in the legal world and from others who have reported on these matters, as well as from a couple of spooks. We have been reminded of the challenges we face as a society: to keep us safe and to protect our privacy while maintaining a way of life that we cherish and enjoy.
There have been the cases of Fusilier Lee Rigby; the Jewish grocery and school in France; British tourists just a year ago on Sousse beach; museums in Tunis and Belgium; music cafes and sports arenas in Paris; transport in London; the French police; Charlie Hebdo journalists in Paris; gay clubbers in Orlando; deadly bombers in Brussels airport and the metro; children, sadly even babies, abused; missing children here and abroad; guns and drugs smuggled on to our shores or bought on the internet; people trafficked; and organised crime with international connections.
Women are often harassed and stalked. Lily Allen described the massive and incredibly disturbing impact of that, much of it via social media, while our own much-loved and missed Jo Cox had been harassed by a stream of messages over three months.
So we cover just about everybody. Jews and Christians, Muslims and non-believers, straight and gay, men and women, MPs, journalists, police and clubbers; at work, at play, on holiday, shopping, travelling, at school—all have been targeted by those who mean harm. Unfortunately there are people and organisations who would hurt not only us but even people who are far more vulnerable than us.
So we have an obligation to halt that harm and stop it happening. The problem is not new. As my old supervisor, the noble Lord, Lord Hennessy, reminded us, it goes back to John Stuart Mill’s day—that desire to protect our privacy and ensure that the state does not take on intrusion which breaks the precious contract between people and government.
It is for this reason that, in examining the Bill to see whether the balance of security and privacy has been achieved, we welcome the new and overarching Clause 2, which says that in exercising its powers, the relevant authority must consider the issue of privacy. This requirement is even more necessary given how society now functions. Indeed, I sometimes feel that I am watched all the time—and by private companies, as my noble friend Lord Rooker reminded us. My phone records where I am, to whom I spoke, which websites I visited, and even how many steps I take each day. Between that, my credit card and Oyster card, CCTV and my entry fobs, everything I do and every step I take is known to someone.
It was rather different when I was growing up. We used to chat in pubs, at the school gate, at work, in the kitchen, at church, in college, in clubs, at the hairdresser—or I suppose the barber, for some noble Lords. We sent postcards, even Valentine’s cards, and telegrams, we kept our appointments in diaries or in a Filofax, and we gossiped on the phone. Today we use social media—web chats, texts, apps—for all that, as if it is a private sphere, and we talk about our loves, fears, dreams, frustrations, job applications and misdeeds, our thoughts and opinions about our friends and neighbours, and even about our politics. Even wider than what we do with our friends, we trust our doctors, lawyers, priests and indeed journalists to keep our secrets safe and secure. So while we rightly demand that our security is safeguarded, we also want and expect what we think of as that private world to be safeguarded.
As we have heard today, in the Commons there was, perhaps unusually, thorough debate, as well as the willingness of the Government to listen and respond. We have all been helped by the expert input from my honourable friend Keir Starmer, the then shadow Home Office Minister, which helped make considerable progress in improving the Bill, such that Labour could support it at Third Reading.
The Government’s establishment of the Anderson review of bulk powers, the moves on a higher threshold for medical record access, the double lock for major modification of warrants, the exclusion of normal trade union activity from interference, and the requirement for judicial commissioners to give weight to the overarching privacy clause have all made our task so much easier. We will of course look carefully at what David Anderson, assisted by his expert colleagues, finds regarding bulk powers, and will respond as necessary. There are other issues we will want to finesse and probe before we finally sign the Bill off—in particular the threshold for ICR access and a determination of what is “serious”.
We also need to safeguard further the ability of clients to rely on their lawyers’ discretion when they talk to them, and we need to refine the protection of journalists’ sources. We must give people the ability to speak without fear of identification. It would not be in the public interest for such risk to silence those we want to speak out. We look forward to the outcome of the Government’s discussion with the Bar Council, the Law Society and CILEx on the former issue and to their talks with the NUJ and the Society of Editors on the latter, as well as on the definition of who is a journalist. Maybe it is somebody reporting for outlets covered in any way, shape or form by some sort of regulatory system. Of course, that raises the question of whether the Government will ever fully implement Leveson.
However, much has been achieved. We welcome the consolidation of the existing powers in a transparent form, as well as the creation of the IPC and the double lock, and the involvement of the IPC or judicial commissioners not just in decisions but in monitoring and review.
We welcome the recognition of the role played by parliamentarians, journalists and lawyers in giving voice or protection to others, with the confidence for those citizens that the privacy of those exchanges will, with only very rare exceptions, be safeguarded. We will want to test the current wording on these sensitive professions, as the Bill perhaps has not yet achieved the right balance in protecting the privacy of those who need it most.
We welcome the “no prosecution” undertaking for whistleblowers who have used the channels provided. We welcome that urgent warrants will be speedily reviewed and, if necessary, cancelled by a judicial commissioner.
We welcome the involvement of the PM in access to parliamentary material, and the avowal and updating of the Wilson doctrine. Also welcome is the introduction of civil liability for unlawful interceptions—although we also heard views today about whether there is a sufficiently serious offence for anyone who wilfully misuses the powers in the Bill. We may want to return to that.
We need an answer from the Government to the question that my noble friend Lady Smith put to the Leader of the House today, to which she got no response, and which was repeated by my noble friend Lord Rosser at the start of this debate. Given that we will leave the EU, are changes now needed to the Bill to retain the close working relationship we have with those allies, with whom we will now be in a slightly different relationship?
As we have heard, there is rarely a right or wrong balance in the situation that we face. We want security and we want our privacy, civil liberties, respect for human rights and confidentiality. We have still to assure ourselves that this Bill has quite the right answer, although great progress has been made. That is what we will seek to achieve as we scrutinise the fine print in Committee. We look forward to working across the House on that aim.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, this has been an interesting and thought-provoking debate, which has benefited from the considerable expertise on all sides of this House. I am grateful to all those who have contributed. In particular, I welcome the contributions from those opposite. This reflects the constructive approach that has been taken to the Bill right across Parliament.
Indeed, I recognise the consensus on all sides of this House that new legislation is needed to make the use of these powers clearer and more transparent. We have an opportunity now to ensure that the security and intelligence agencies and law enforcement have the powers they need, and to strengthen the safeguards and oversight that govern their use. The list of speakers this evening is testament to the importance of this issue.
Mention has repeatedly been made of the need to balance privacy and security. There have been references to the privacy of the innocents, but one must also take account of the protection of the innocents. As the noble Baroness, Lady Liddell, observed, one of the primary human rights is the right to life, and without that the others fade into insignificance.
A number of issues have been raised in the course of this fairly lengthy debate. If I am short in responding to them at this stage, it is not because I consider those contributions slight but because I am constrained by time.
The noble Lord, Lord Rosser, raised the question of EU co-operation, which has just been revisited by the noble Baroness, and whether that would impact the present Bill. There is, of course, no immediate change to our relationship with the EU and it is not considered that any changes are or will be required to the Bill by virtue of recent developments. Of course, negotiations will take place over the coming weeks and months with regard to our situation and the EU, and these will clearly need to take account of our security and the need for cross-border co-operation in the area of security and the need for further co-operation beyond that. But let us remember that we already co-operate with many countries beyond the European Union in matters of security. Noble Lords will be familiar with the “Five Eyes”, which includes the United States, Canada, Australia and New Zealand—none of them connected with the European Union. So it is not considered that that will be an issue for the Bill as it proceeds.
The noble Lord, Lord Rosser, also referred to the undertakings and commitments that have been given in the Commons with regard to the Bill. Of course, we will meet those commitments and undertakings. We fully intend to bring forward a number of amendments. We intend to have those amendments available by 4 July.
There are remaining issues, of course, that will be the subject of further debate. The noble Lord, Lord Rosser, made reference to such issues as the privacy clause, which is now expressed in the Bill and the Bill is improved because of that; the express provision on trade unions—again, the Bill is improved because of that; and the question of dealing with whistleblowers’ protection, which the Solicitor-General alluded to in the other place. Again, we will meet our commitments with regard to these matters.
I turn to some of the observations of the noble Lord, Lord Paddick, which were supported to some extent by the noble Lord, Lord Oates. He concentrated in particular on internet connection records and something that he referred to as a draconian power. I noticed that the noble Lord, Lord Condon, alluded to these powers and was at pains to point out that they were not extending any boundaries but maintaining them. I would go further: these powers are actually restoring a boundary that had been lost as people moved away from conventional telecommunications. There was a time when police powers in regard to conventional telecommunications would provide them with the datasets they required, particularly in the context of evidence gathering and prosecution.
I pause on that note. The noble Lord, Lord Paddick, suggested that recourse could be had to the powers of the security services rather than in gathering ICRs. But of course that is neither practical nor effective because many of the powers of the security services produce investigative material that is not admissible as evidence in a court of law. Therefore, one has to be careful about how one confuses the powers of the security services to gather and investigate and the powers that are conferred upon the police in the context of internet connection records.
With regard to the security of that material, the noble Lord, Lord Oates, raised a number of questions, some of which puzzled me a little. What I will say is this: clearly, the data are retained by the service provider and those service providers are bound by various data protection obligations with regard to the security of those data, and that will continue to be the case. As regards the period of retention—12 months—that reflects the requirements of the police in the context of the sorts of investigations that are carried out by reference to these kinds of data; that is, telephonic communications data and the like.
So far as cost is concerned, the noble Lord, Lord Paddick, cited a figure of £1 billion. I know not where that figure came from, but the considered opinion of the Government is that the cost will be in the region of £174 million over 10 years. Of course, that cost is not to the service providers but will be met by the Government where it is reasonably incurred by the service providers when and if they are required to retain the relevant data.
The noble Lord, Lord Paddick, also referred to the request filter as a database and said that it was therefore vulnerable. The request filter is not a database; it is simply a filter. It is a further safeguard because it will operate in such a way that where a mass of data are returned by a service provider they will go through the request filter, and the relevant authority will receive only the data it requested and no additional data, notwithstanding what the service provider may have made available. I hope that answers the points raised by the noble Lord, Lord Paddick.
I will not be able to answer every query that has been raised today. If at the end of this evening there are any points that noble Lords feel I have not responded to and wish me to do so before Committee, they should allow my office to be aware of that and I shall arrange to write to them on the particular topic. I say “my office” in response to an observation from one of my noble friends who said that there was no Home Office Minister here. I had understood that I was here in the capacity of a Home Office spokesperson. If I am not, I want to know why I have been answering all these questions for the past four weeks.
The noble Lord, Lord Paddick, also referred to the RUSI 10 tests, which were alluded to by the noble Lords, Lord Hennessy and Lord Rooker. Professor Michael Clarke, the then director-general of RUSI, gave evidence to the Joint Committee that scrutinised the draft Bill. He said:
“As Chair of the RUSI panel, I can say that the Bill met most of our expectations in terms of the recommendations that we made”.
The noble Lord, Lord Rooker, made the sensible suggestion that we should consider producing a paper in which we set out the Government’s response to each of those 10 points. I hope he will understand what I mean when I say that we will take that and give it due consideration.
The noble Lord, Lord Pannick, raised the question of legal professional privilege. He was joined in these observations by the noble Lords, Lord Lester, Lord Beecham and Lord Thomas. I notice that, in his account of his experiences, the noble Lord, Lord Thomas, did not say what happened to the bag of money but surely we can infer that it remained where it was. I fully accept the analysis of legal professional privilege that has been advanced by each of the noble Lords. The present position is this: I am due to meet representatives of the Bar Councils and the Law Societies this coming week to discuss the scope of the provisions within the Bill with regard to legal professional privilege.
The noble Lord, Lord Pannick, was right to observe that there is one problematic area—the question of when and to what extent there should be access to LPP material in circumstances where there is no iniquity. There may be very exceptional circumstances in which it is critical in the context of an immediate investigation that some data should be recovered. That will be addressed and we will bring forward our finalised position in due course.
There was also the question of journalistic privilege. This has been clouded by a misunderstanding on the part of many journalists as to what, if any, privilege they actually enjoy, in particular the belief that whenever security services sought information from a service provider they would be given notice of that. That is not the case. It is not the present law and it is not realistic that that can be law. However, again, this will be addressed going forward.
In addition, of course, we have to address the question of what is a journalist. I believe one noble Lord on the opposition Benches said that could be defined normally by waving an NUJ ticket. That is no longer the case and virtually every blogger on the planet would claim to be a journalist of one kind or another. It is a very serious issue and we will seek to address it.
The noble Lord, Lord Blunkett, mentioned the necessary balance between liberty and privacy and again underlined the need to balance the privacy of the innocent with their protection.
The noble Lord, Lord Strasburger, raised a number of issues. I shall not repeat what I have already said about internet connection records or the request filter. He also questioned whether the provisions of the Bill would somehow threaten, as he put it, encryption. There is no question of that. The provisions of the Bill do not weaken encryption or threaten it. We do not seek what have sometimes been erroneously termed “back doors” into encrypted material. I would seek to dispel any such suggestion.
The noble Baroness, Lady Neville-Jones, raised questions about extraterritorial jurisdiction, as did the noble Baroness, Lady Liddell, and the noble Lords, Lord West and Lord Janvrin. The US Attorney-General recently indicated that discussions are ongoing to address conflicting legal obligations in circumstances where we seek the release by American companies of material. United Kingdom law is perfectly clear that companies providing communication services to users in the United Kingdom, irrespective of where they are based in the world, must comply with lawful requests and warrants from UK authorities. The ultimate power to deal with that would of course be contempt of court proceedings. We maintain that right to extraterritoriality. In response to a further point made by the noble Baroness, Lady Liddell, I should add that we are satisfied that the provisions of the Bill comply with and meet our international legal obligations. Whether it sets a template for others is a different matter, but we are satisfied in that regard.
The noble Lord, Lord Lester, raised the question of legal professional privilege. He also referred to the position of the IPC and to the “commission”. I should be clear that in terms of the Bill there is no commission; there is a commissioner. However, the commissioner has the express power to seek independent legal advice as and when required. I believe that another of your Lordships referred to the commission. It is not a commission; it is the commissioner.
Lord Lester of Herne Hill
I am grateful for what the Minister has just said, but will the Government consider, as David Anderson has suggested, that there should be a commission endowed with the kind of powers that he has recommended?
Lord Keen of Elie
I note the observation. The position of the Government is that it is appropriate that there should be a commissioner and that it is not necessary that there should be a commission. Clearly, this matter can be revisited in Committee.
Thematic warrants were mentioned by the noble Lord, Lord Lester, and my noble friend Lord Lothian. Thematic warrants are considered vital to investigate complex and fast-moving threats, and they are currently provided for under RIPA. The Bill simply clarifies and strengthens the safeguards around the operation of thematic warrants but, again, if there are issues as to their scope, they can be revisited in Committee.
My noble friend Lord Lothian and the noble Lord, Lord Janvrin, raised the question of bulk personal data. The Government accepted in principle the argument that we should provide further restrictions on the use of class BPD warrants and should take into consideration some of the detail contained in the ISC’s draft clause. The Government intend to bring forward some amendment on this—again, I indicate that it should be available by 4 July.
My noble friend Lord Lothian also mentioned additional offences being incorporated into the Bill. It is considered that the changes made to Part 1 make clear the criminal offences that apply. The Bill also creates a new offence for the acquisition of communications data without lawful authorisation. Beyond that, it is not considered appropriate to introduce further criminal offences into the Bill at this stage.
Questions were raised about the double lock, of course. The position of the Government, and I believe that of the Opposition, is that we have now arrived at a suitable position in this respect, but it is important that the judicial point here should be subject to a test of judicial review. It would not be appropriate for a judge in these circumstances to revisit the merits of a decision, and I hope that that will find wider support in the House in due course. In the end the Secretary of State must be answerable to Parliament for the warrants for these intrusive powers, and that is allowed for.
In the context of warrants, the noble Lord, Lord Evans of Weardale, raised the question of speed of operation. There is provision within the Bill for an emergency warrant to be issued by the Secretary of State and then be the subject of review by the judicial commissioner. It is hoped that speed of operation will not be challenged by the terms of the Bill going forward. The noble Viscount, Lord Colville of Culross, mentioned in the context of journalists the matter of notification of warrants. As I indicated, that is not the present law and it is not considered a realistic way forward, but again I anticipate that that may be considered in Committee.
Modern legislation that consolidates and clarifies the powers available to the state to obtain communications and related information is, I believe it is generally acknowledged, badly needed now. That was the conclusion of three independent reviews and three committees of Parliament. The Bill achieves that aim. The threats we face are evolving and the ways in which we communicate are changing rapidly. The capabilities of law enforcement and the security and intelligence agencies must evolve and change too. It is Parliament’s responsibility to ensure that those charged with keeping us safe have the powers they need, governed by strong safeguards, strict protections and robust oversight. That is what the Bill provides.
The Government are clear that the Bill must command the support of Parliament and the public. It arrives in this House having been subject to extensive debate and examination in the other place and having received cross-party support and a resounding majority there. As we have done to date, we will continue to listen, to engage and to make changes that improve the Bill or strengthen its safeguards. We have the opportunity here to deliver world-leading legislation that provides robust oversight and powerful privacy protections. It is legislation that is clear, comprehensible and legally sound. It will provide the men and women of our law enforcement and security and intelligence agencies with the powers they need to keep us safe. I commend the Bill to the House.