15:52 - The House divided: - Ayes: 298 / Noes: 261 - Question accordingly agreed to.
The Minister for Security (Mr Ben Wallace)
I beg to move, That this House disagrees with Lords amendment 11.
Mr Speaker
With this it will be convenient to discuss the following:
Lords amendment 12, and Government motion to disagree.
Lords amendment 13, and Government motion to disagree.
Lords amendment 14, and Government motion to disagree.
Lords amendment 15, and Government motion to disagree.
Lords amendment 338, and Government motion to disagree.
Lords amendment 339, and Government motion to disagree.
Mr Wallace
The Investigatory Powers Bill will provide a world-leading framework for the use of investigatory powers by law enforcement and the security and intelligence agencies. It will strengthen the safeguards for the use of those powers, including through the introduction of a double lock for the most intrusive powers, and it will create a powerful new body responsible for oversight of them. This is the most important piece of legislation this Government will bring before the House.
I will turn first to the amendments tabled in the other place by Baroness Hollins. As we have just heard from my right hon. Friend the Secretary of State for Culture, Media and Sport, the Government will hold a landmark public consultation relating to the governance of the press and its relationship with the public, police and politicians. This consultation will give everyone with an interest in these matters an opportunity to have their say on this vital issue, which affects each and every one of us in the country. I hope the whole House will welcome the announcement, which shows the Government’s commitment to addressing the issues and recommendations set out in the Leveson report in the most appropriate way.
This is an emotive subject for Members, in both this House and the other place, where Earl Howe set out the Government’s position in relation to this issue during the debate on Report. I hope the House will indulge me while I set out the key points. As I said at the start of my remarks, the Investigatory Powers Bill is one of the most important pieces of legislation the Government will bring forward. It will provide a world-leading framework for the use of investigatory powers by law enforcement and security agencies and, in doing so, protect this nation from some of the most serious crimes and threats. We should not forget that the Bill will also strengthen the safeguards for the use of those powers, and it will create a powerful new body responsible for that oversight.
We heard yesterday in the Lords from peers on all sides about the importance of the Bill and the careful cross-party scrutiny that has got it into the very good shape that it comes back to the House in today. The Bill will provide vital tools for our law enforcement, security and intelligence agencies. It is not, and never was, intended to provide for the regulation of the press.
Whatever the merits of the provisions introduced by Baroness Hollins, this is not the place for them. Their inclusion is a distraction from the very important aims of the Bill. Moreover, they threaten to undermine an important provision in the Bill.
Mark Field (Cities of London and Westminster) (Con)
While I entirely accept that this is not the place to deal with those matters, I hope the Minister will recognise that there is very strong feeling on these Benches that the issues in relation to Leveson do need to be dealt with as a matter of some urgency. While I agree that we should not, therefore, accept the amendment, I very much hope that he and other Ministers will ensure that these matters are brought to the House at the earliest possible opportunity, so that they can be fully and properly dealt with.
Mr Wallace
I am grateful to my right hon. Friend, and I do, of course, recognise the strength of feeling about press regulation, but I also recognise the strength of feeling about making sure we give our security services and our police forces the tools to tackle the paedophiles, the serious and organised criminals and the terrorists who threaten the state and my constituents.
Chris Bryant (Rhondda) (Lab)
I am wholly in favour of most of the other provisions of the Bill, but that is not the point we are debating now; we are debating why the Government are reneging on their promise, made on 18 March 2013 as part of a package, that we would commence section 40 of the Crime and Courts Act 2013. Does the Minister not realise that if we keep getting statements such as the one we just had from the Secretary of State for Culture, Media and Sport, suggesting that the Government intend to kick this issue down the road yet further, their lordships are simply going to send the proposals back again, and again, and again, with probably even larger majorities?
Mr Wallace
I know that the hon. Gentleman is an impatient individual, but 10 weeks is not a long time to wait in engaging in a consultation. [Interruption.] He says, “Three and a half years”, but what is 10 weeks on top of that?
Mr Rees-Mogg
My hon. Friend makes a crucially important point. If SNP Members do not require the Sewel consents to be given, then implicitly, as we have an unwritten constitution and operate by convention, they would be giving media policy back to the United Kingdom Parliament.
Joanna Cherry (Edinburgh South West) (SNP)
The Minister asked me a question. I can only remind him of what Mr Speaker said when he was in the Chair: that legislative consent is not required until the Bill has been amended, as the Minister will know very well. Legislative consent to those aspects of the Bill that require it is not sought from the Scottish Government until the Bill has passed through this House. He is therefore setting a false trap. He will remember a phrase from the Scottish Parliament, “My head does not zip up the back.” My head does not zip up the back, and I will not fall into his false trap, but SNP Members will give their support to the Lords amendment on this occasion.
Mr Wallace
I think we can debate Zippy another time.
This is about an important issue of principle. Throughout all the Bills I have ever been involved in, we in this House have gone out of our way to make sure that we seek the up-front approval of the Scottish Parliament in an LCM before we start down the path of picking and choosing what we do or do not support.
Mr Rees-Mogg
What the hon. and learned Member for Edinburgh South West (Joanna Cherry) said may well be true, but this is our last opportunity to approve or reject the amendment. If it goes back to the House of Lords, and all the other amendments that we make are agreed to, there will be no further opportunity to amend the Bill, so legislating now, without consent, would make the law.
Mr Wallace
Not for the first time, my hon. Friend is absolutely right. This is the last opportunity to amend this Bill—there will be no going back. Should the hon. and learned Lady wish to go back, then we shall hear her options.
Joanna Cherry
The Minister is in a slightly unfair position because he did not pilot the Bill through the Bill Committee, but I did serve on the Committee, and he can check what happened with his ministerial colleagues. The Government accepted clause 8, on the back of which this amendment rides, as a result of an SNP amendment to reintroduce the tort—or, to use the Scots word, delict—in the Regulation of Investigatory Powers Act 2000. This further Lords amendment rides on the back of an amendment that arose from the historic event of the Government actually accepting an SNP suggestion. I was absolutely delighted about that and will mention it at every opportunity.
Mr Wallace
In the words of the hon. and learned Lady, my head does not zip up the back either. This is an amendment to an accepted amendment. That does not mean that the amendment is accepted in relation to an LCM—we cannot make that assumption. We should reflect on Mr Speaker’s point that this House does not usually legislate on policy that is not agreed to by the Scottish Parliament in advance.
Mr Rees-Mogg
We have developed a fascinating constitutional suggestion that amendments made by SNP Members of this House are senior to legislative consent motions given by the Scottish Parliament. SNP Members seem to be raising their status.
Mr Wallace
I am keen to move on, but merely say that how SNP Members vote today will certainly be a clear sign of whether they are embracing a new principle on how we should choose to legislate on issues in Scotland.
As I said, this clause was never intended to provide a basis for claims against newspapers for voicemail interception—so-called phone hacking. Civil claims can already be brought in respect of such activity. In any case, the Bill makes such activity a criminal offence, as is surely right for such egregious interferences with privacy.
If there is a problem to be addressed, this is not the way to do it, and this is not the Bill in which to do it. This is the wrong amendment in the wrong Bill at the wrong time. Governance of the press is an important issue, and it is right that such an issue is subject to full consultation and dedicated scrutiny and consideration. It should not just be tacked on to one of the most important cross-party Bills that this House has debated. This Bill is about the security of the nation. It is a Bill to keep all our constituents safe. Members should ask themselves whether it is appropriate to jeopardise this Bill for the sake of opportunism in the other place.
Dr Andrew Murrison (South West Wiltshire) (Con)
The solution, of course, would be for the Government to accept Baroness Hollins’s amendments, and then the Bill would be secured, since all of us in this place are broadly supportive of its stated intentions. Many of us have sat through these debates at great length for a very long time.
Dr Murrison
My hon. Friend is right to say so.
Does the Minister accept that the only objection to this measure that the Government are putting forward is that it is in the wrong place? That appears to be a fairly slim argument. Can he assure people like me who are perhaps wavering on this matter that the terms of reference of the consultation that the Secretary of State for Culture, Media and Sport announced earlier will be sufficiently robust and give a steer on the Government’s good intentions on section 40, because then we might be tempted to be a little more patient in the hope that that consultation will result in an outcome that makes Baroness Hollins’s amendments redundant?
Mr Wallace
I hear my hon. Friend’s comments, but this is like saying, “Because we’re being blackmailed, we should give in to the blackmail.” The Bill will give powers to our security services and our police to deal with some horrendous crimes and threats to the security of the nation. That does not mean that because someone has tacked an amendment on to the Bill that is not really anything to do with it, we should just give in. We should say, “Let us have the debate about press regulation in the proper forum.” My right hon. Friend the Secretary of State has brought forward a 10-week consultation period. As the House will know, the Government have been put on notice that, at the end of that period, they will need to listen to and engage with everyone’s concerns and to come up with a position. That is not necessarily the end of this matter in Parliament—there will be plenty of other times when pieces of legislation that may be more appropriate come through.
Mr Dominic Raab (Esher and Walton) (Con)
I thank the Minister for that reassurance. I welcome the Government’s approach, particularly in addressing the critical question of the Bill—the balance between security and privacy—and in accepting many of the recommendations on safeguards proposed by the Intelligence and Security Committee, whose Chairman, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), is in his place. May I urge the Government not to allow the Bill, which is fundamentally about national security, to be conflated with, or held up by, the very different and much wider question of media regulation, as urged on us by the other place?
Mr Wallace
The whole House will hear my hon. Friend’s comments. He is a dedicated campaigner on privacy—in fact, on both parts of the Bill—in terms of what he believes in, and he has been consistent throughout. The House should listen when he says that he wants to make sure that a Bill with good oversight is passed correctly, giving us the freedom then to move on to debate and shape press regulation in, rightly, a different forum.
Mr Wallace
No, I am sorry.
On that basis, I urge this House to reject the Lords amendments in relation to clauses 8, 9 and 273.
Mr Wallace
In that spirit, perhaps the hon. Lady could answer the question asked by my hon. Friend the Member for North Dorset (Simon Hoare): should the Bill not contain Baroness Hollins’s amendment, would the hon. Lady support it?
Joanna Cherry
I assure the hon. Gentleman that it would not come to that, because if the amendment is passed by the House, the Scottish Government will grant a legislative consent motion. The SNP, which is in opposition in Westminster and the Government in Scotland, has discussed this issue in detail over the weekend—I discussed it with the Scottish Government Minister—and we have a position on Lords amendment 15. I will now set out our position, but I am very conscious of the time, so I will be as brief as possible.
As I said earlier, Lords amendment 15 rides on the back of clause 8, and I am very proud to say that it arose from an SNP suggestion in Committee for such an amendment. We have heard about the effect of the Lords amendment. In my respectful submission, the effect will be good: no newspaper should be involved in telephone hacking, and if one is, it should face the consequences. I want to make the SNP position clear.
Section 40 of the Crime and Courts Act, about which we have heard much today, was passed in March 2013. It was part of implementing the Leveson inquiry recommendation that any new regulator set up by the press should be accredited as independent and effective. The purpose of section 40 is to provide costs protection for claimants and Leveson-regulated newspaper publishers. It was passed in this House with cross-party agreement, including the support of SNP MPs. There were rather fewer SNP MPs then than there are now, but my colleagues supported the then Bill. As has already been said, the UK Government have reneged on implementing section 40 on many occasions. Today’s announcement of a consultation kicks its implementation further into the long grass.
As has correctly been said, section 40 extends to England and Wales only, because the regulation of print media is devolved to the Scottish Parliament. The Scottish Parliament has provided cross-party support for the UK Government’s actions to implement the royal charter. The Scottish Government will continue to monitor the current press regulations and work with other parties in Scotland and at Westminster to ensure effective regulation of the media on a non-political basis.
The majority of the press, and in particular the regional press in Scotland, were not involved in the sort of malpractice that prompted the Leveson recommendations. It is therefore the view of the Scottish Government and the Scottish National party that any policy in this area in Scotland must be proportionate and must balance the freedom of the press with the public desire for high standards, accuracy and transparency.
That said, the protection afforded by section 40 when brought into force would be available to Scottish litigants who chose to sue newspapers based in England and Wales. Regrettably, a number of major newspapers based in England were involved in the sort of malpractice that prompted Leveson, and it is therefore right that such protection should be afforded. The limited amendments that we are discussing will not affect small or regional newspapers adversely at all, because they have not been involved in phone hacking, and, I assume, do not have any plans to become involved in it.
Scottish National party MPs are going to support the Lords amendments to provide costs protection across the UK for claimants and Leveson-regulated news publishers in claims for unlawful interception of communications, including phone hacking. I hope that as a result of the amendments some good, at least, will come of this Bill’s passage through Parliament, in the event that this House is minded to support them. I will be crystal clear that nothing I have said involves any concession whatever about the primacy and importance of the Sewel convention, which is now enshrined in legislation. If anyone is in any doubt on that, they should go away and read carefully the guidance note from which I have quoted at some length this afternoon.
Mr Wallace
On memorandum 10, to which the hon. and learned Lady refers, is she saying that she is happy to accept the principle that in future when amendments come forward that are not Government amendments nor amendments that the Government are minded to accept, whether from a friendly Back Bencher or an unfriendly one, we do not have to consult the Scottish Government for a legislative consent motion?
Joanna Cherry
The hon. Gentleman is no doubt aware of what I did for a career before I came here. I have no intention of making any concession that goes beyond the four walls of what I have already said.
Matt Warman
This short, impassioned debate about the freedom of the press has surely proved that a 90-minute debate on a Lords amendment shoehorned into a Bill about national security cannot be the right place to make a decision as important as this one. This Bill is supposed to regulate hacking, yet the Lords are seeking to hack the Bill by putting in something completely irrelevant to the vital matters of national security that it covers. As the previous Prime Minister and the present one have said, this is one of the most important—if not the most important—pieces of legislation in this Parliament. Were I to dare criticise either of them, I would contend that the freedom of the press is even more important than some aspects of the Bill. It is absurd for anyone seriously to suggest that we can deal with this matter in 90 minutes.
I have a great deal of sympathy with the view of my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) that the chilling effect of the proposals in section 40 would have a hugely negative impact across not only the national media but the regional and local media. Over hundreds of years, we have seen the good that a vibrant, boisterous and scabrous press can do, as other Members have said, and we need to preserve that. We do not need to damn it in a 90-minute debate. I hope that Members of all parties can see that this is not the right place to take such a momentous decision.
Mr Wallace
Every morning I go into my office and I open a number of documents. They are not nice reading. They usually focus on those people that want to kill us, want to rob us, want to corrupt our country or want to spy on us. This is not a subject to take lightly. This is not a subject to which to politically attach something to settle a score elsewhere. The Bill is about giving our brave men and women in the security services and the police forces up and down the country the powers to do their job, to make sure that we put away those people that pose a threat to this country.
Those men and women are watching this debate today. Instead of seeing this House debate the hundreds of amendments that this Parliament has collectively produced to reach a consensus to make the Bill something to go forward with, they see political opportunism being played out on another subject: press regulation. They do not see us discussing how we are going to protect them and society. We should not forget that.
What is important is that this Bill is not like any other Bill. This Bill is here because we have to bring it forward to replace the Data Retention and Investigatory Powers Act 2014. DRIPA has a sunset clause and will expire on 31 December. The irony of that is that if DRIPA expires, we lose the requirement that we can place on internet companies and CSPs to retain data—data that we need to catch phone hackers, to catch child killers, to put away paedophiles. That is the risk that hon. Members are taking, with amendment 15. That is what they are making us decide on. We should reject the choice that they are putting before us and focus on the good things in the Bill and what it has done to strengthen and protect our security forces to ensure that we put away the right people. We should not play politics in this House or the other place.
Lords amendment 11 disagreed to.
Lords amendments 12 to 14 disagreed to.
After Clause 8
Motion made, and Question put, That this House disagrees with Lords amendment 15.—(Mr Ben Wallace.)
Mr Deputy Speaker (Mr Lindsay Hoyle)
With this we may take Lords amendments 2 to 10, 16 to 337 and 340 to 377.
Mr Wallace
The Investigatory Powers Bill will ensure that the police and the security and intelligence agencies have the vital powers they need at a time of changing threats and rapidly evolving technology. It will place those powers on a clear statutory footing and achieve world-leading oversight. It will leave no doubt about how seriously we value privacy and individual rights in this country.
Let us not forget why those powers are so important. Every day, our law enforcement and security and intelligence agencies use those powers to investigate serious crime and collect evidence to convict offenders. They are particularly crucial in combating human trafficking and child exploitation. For example, in January 2009, Operation Retriever, an organised crime investigation in Derby, uncovered one of the most serious cases of child sexual abuse in recent times, involving multiple offenders and multiple victims.
During the investigation, officers uncovered an elaborate and hideous campaign of sexual exploitation directed against teenage girls who were groomed by people they thought they could trust and were driven around the midlands to houses, hotels and bed-and-breakfasts, where they were raped, often violently. One of the officers involved in the investigation described it as
“a campaign of rape against children”.
The investigation team used a combination of covert policing and communications data, such as mobile phone records, to link group members and their victims to each other, to phone handsets and to downloaded images and videos of sexual abuse taking place. In that investigation alone, 27 female victims aged between 12 and 18 were identified. Communications data evidence helped to secure the convictions of nine defendants. One of the offenders is serving at least 11 years for rape, sexual assault, sexual activity with a child, perverting the course of justice, aiding and abetting rape, false imprisonment and making child pornography. Another is serving at least eight years for rape, sexual assault and other sexual activity. Yet another is serving three years for the supply of cocaine.
Those men could still be on our streets, exploiting innocent children, without the police having access to the important intelligence that communications data provide. It is essential that we give the police the tools they need to investigate and prevent awful crimes such as these. That is what this Bill will do.
I am pleased that the Bill has commanded cross-party support, and I am grateful to all those who helped, in the spirit of consensus, to produce the Bill that we have before us. On Report, the former shadow Home Secretary, the right hon. Member for Leigh (Andy Burnham), set out his party’s position:
“We have supported the principle of a modern legal framework governing the use of investigatory powers, recognising that as communications have migrated online, the police and security services have lost capability”. —[Official Report, 6 June 2016; Vol. 611, c. 952.]
On Third Reading, the right hon. Gentleman went on to say:
“The police and security services do incredibly difficult work on our behalf and we thank them for it. Their job has got harder as both the level of the threat has risen and the nature of communication has changed in the modern world. To fail to respond to that would be a dereliction of our duties to them; it would also fail our constituents. The Bill is ultimately about their safety, the safety of their families and their privacy. I think we can look ourselves in the mirror tomorrow and say we have done our level best to maximise both.”—[Official Report, 7 June 2016; Vol. 611, c. 1148.]
The right hon. Gentleman was right. This has been a truly collaborative effort, of which both we and the Opposition can be proud. I note that the Government’s approach has attracted support from some of the Liberal Democrats in the Lords, although Liberal Democrat Members are not present here.
We have before us today a substantial number of changes agreed in the other place—evidence of constructive engagement from all sides to further improve this landmark legislation. Let me list the main changes. Responding to concerns raised by the former shadow Home Secretary, we have replicated changes agreed in this House throughout other parts of the Bill, including protections for trade union activity and amendments to the test applied by judicial commissioners when reviewing warrants, notices and authorisations under the Bill.
We commissioned an independent review by the independent reviewer of terrorism legislation, David Anderson QC, that comprehensively endorsed the necessity of the bulk powers. As a consequence of that review, we have included provision for a technical advisory panel to advise the Investigatory Powers Commissioner and the Secretary of State on the impact of changes in technology. We have added a sentencing threshold for access to internet connection records, so that they could not be used to investigate minor crimes. We have added extra protections and safeguards for journalists, lawyers and parliamentarians.
We have addressed issues raised by the Intelligence and Security Committee by giving the Committee the right to refer matters to the Investigatory Powers Commissioner to investigate on behalf of this House; adding a requirement for the commissioner to report on thematic warrants and operational purposes; introducing a criminal offence for the misuse of bulk powers; bolstering safeguards surrounding the modification and renewal of warrants; and clarifying provisions relating to class BPD warrants, improving safeguards, and prohibiting the retention of medical records in bulk personal datasets held under class warrants.
Mr Dominic Grieve (Beaconsfield) (Con)
May I put on record my appreciation for the way that the Minister listened to the representations made by the Intelligence and Security Committee in this matter? It has proved to be a most constructive dialogue and I am extremely grateful to him for having taken on board and acted on the vast bulk of the recommendations that we put forward. May I raise one matter? On the issue of thematic warrants, I know that the Government, for very understandable reasons, were unable to move on some of the safeguards that the Committee wanted. Will the Minister give an undertaking that he will keep that under review as we see how the measure operates in practice?
Mr Wallace
I am grateful to my right hon. and learned Friend for his comments. Although it would be nice to take the credit, that belongs to my hon. and learned Friend the Solicitor General, who steered the Bill through Committee, and the present Prime Minister, who helped shape and deliver the Bill. I have merely come in at the end, but will take some of the credit nevertheless.
Of course we will keep the matter under review, as my right hon. and learned Friend the Chair of the Intelligence and Security Committee asked. I do understand the concerns about thematic warrants. I know that he will keep the matter under review and the Government will do so as well.
We have made a number of minor and technical changes to improve the clarity and consistency of the legislation. Finally, in the absence of legislative consent from the Northern Ireland Assembly, we have removed measures that would have brought oversight of devolved investigatory powers in Northern Ireland within the remit of the Investigatory Powers Commissioner.
Many amendments have been accepted and we have worked together to produce the Bill that is before us today. I hope it will command the support of the whole House.
In closing, I remind the House that one of the aims of this legislation is to update investigatory powers for the digital age. It is worth contemplating briefly the consequences that would have come from failing to achieve that aim. Police forces across the country are increasingly struggling to pursue investigations because they cannot uncover crucial information as criminals’ activity moves online. Alan Wardle of the National Society for the Prevention of Cruelty to Children told the Public Bill Committee that
“the police’s ability to investigate and prosecute some of the high-profile crimes we have seen in recent years—online grooming of children and the number of people who are viewing illegal images of children online, which has grown exponentially—is increasingly dependent on communications data. I think it is vital that this Bill ensures that the police have the powers and capabilities to continue to do that.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 34.]
Mr Wallace
Perhaps I could pick up on some of the concerns of Liberty. We will all have had in our inboxes this morning a letter from Liberty. The concerns expressed in it are, I am afraid, simply wrong. In the third paragraph, Liberty’s policy officer says:
“Bulk powers allow for…surveillance…The much vaunted ‘double lock’ system of authorisation in fact allows the Secretary of State rather than judges to authorise warrants.”
That is incorrect; in fact, the Secretary of State and a judge will authorise a warrant. Perhaps Liberty is incorrect in some of its assertions about why it is unhappy and should look at the Bill, as amended, that has been before this House.
Ms Abbott
I have no doubt that stakeholders will look at the amended Bill, and if it returns to us from the Lords, there will no doubt be another opportunity to tease out some of these issues.
This Bill has all-party support and that is significant, because getting the balance right between updating legislation to deal with an internet and high-tech age and defending the civil liberties of subjects is very important, and this House is best placed to do that. We have been grateful to Ministers for being willing to listen to Members in all parts of the House in seeking to improve the Bill.
Joanna Cherry
I agree with the hon. Gentleman that at some point the House needs to look at the mass harvesting of data by private companies, but there is a big difference between a private company harvesting personal data and the state doing so. A private company does not have the coercive power of the state, and that is the crucial reason why the Bill must be scrutinised so carefully.
It is a matter of the deepest regret that the review on bulk powers did not report to this House and has not been scrutinised in this House. I would not wish the SNP’s position on the Bill to be portrayed as irresponsible, because it is not. It is an attempt to make sure that the Bill fulfils its purpose while remaining lawful and proportionate. As has been alluded to during this debate, the Scottish Parliament has given legislative consent to the consolidating and enhanced safeguard provisions in the Bill, so far as those matters fall within its legislative competence. If Members care to read the terms of the legislative consent motion, which I do not believe was opposed by anyone in the Scottish Parliament, they will see that concern was reiterated about the potential impingement on civil liberties by internet connection record collection and bulk data collection.
I want to correct something that the Minister said about Liberty. Liberty has scrutinised the Bill in detail and provided detailed briefings—one might not agree with them all—on every aspect of the Bill. It is unfair to say that Liberty is mistaken about anything. Liberty is quite correct to say that, in reality, all that the double-lock system means is that a judge will check that the correct procedures have been followed; the Minister will still make the initial decision.
In previous debates, I have said that I would not use the phrase “mass surveillance”, because it is a bit too broad, and I have instead talked about suspicionless surveillance. That is the problem with the Bill: SNP Members and many others with concerns about the Bill believe that surveillance should be targeted and based on suspicion. There is a deal too much suspicionless surveillance in the Bill, even as amended.
The Solicitor General (Robert Buckland)
I listened very carefully to what the hon. and learned Lady said about the double lock. Surely the point is that where the judge has the final say, authorisation will not be granted. Will not that fundamental change create the balance that both she and I want?
Joanna Cherry
I do not accept that the Government have gone as far as some of us would have liked them to go on the double lock, which is by having full-blown judicial warrantry with the power to look at the merits as well as at the process. However, I accept that this is an improvement on what was originally in the Bill, and its inclusion is a great tribute to the hard work that was done by me and my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands), as well as by Labour members of the Committee. If there had not been such root-and-branch opposition, many of the Government amendments that have finally been passed in the Lords would not be with us today.
The Solicitor General
We are all keen to claim the credit, but let us not forget that the Government’s position from the outset was to have a double lock. This important change is very much the result of Government initiative, as well as of the good intentions of Opposition Members.
Joanna Cherry
Indeed, but the fine detail on the double lock—that is what enables the Solicitor General to get up and say that it goes as far as it does—was inserted by way of amendment during the Bill’s passage.
Joanna Cherry
I will make a little progress, and then give way again, because I do not want to take up too much time.
During the Bill’s passage, SNP Members were pleased to offer our support to the Labour party on its amendment to protect trade unionists going about their lawful activities, but what about protections for other activists and campaigners going about their lawful activities and what about non-governmental organisations and whistleblowers? We should not have unjustified spying on trade unionists, and we should not have unjustified spying on other activists either. Whistleblowers can sometimes be very inconvenient to the Government and to the private sector, but they fulfil an important function and the Bill contains insufficient protection for them.
On the protection of journalists, it is true that significant amendments have been made in the Lords, but it is important to put on the record today that journalists have continued concerns about the provisions in the Bill. They feel that safeguards for journalistic sources should apply across the various powers in the Bill, rather than in their current limited form.
In parallel, although great progress has been made in the Lords on the question of legal professional privilege, some in the legal profession still have concerns about the way in which the Bill approaches it. The way the Bill is drafted may have undermined the central premise on which legal professional privilege is based. However, credit where credit is due: significant progress has been made. I spoke this morning to the Law Society of Scotland, which recognises that the Government have come a long way but is still concerned about these somewhat controversial measures and is very anxious to have post-legislative scrutiny of how legal professional privilege will work in practice.
The Solicitor General
The hon. and learned Lady will agree, first, that legal professional privilege has for the first time been averred in legislation, which is very important, and secondly, that further amendments made in the Lords—they were approved by Members such as Lord Pannick—now deal with situations in which legal professional privilege material has been obtained inadvertently. We are now covering even more areas in a circumscribed way, and creating the sort of safeguards that I know she wants.
Joanna Cherry
I read with interest the debates in the Lords about legal professional privilege. I noted carefully the approval granted to the measures by Lord Pannick, but I also noted that Lord Paddick made the point that the Bar Council of England and Wales is still not entirely happy about the provisions. That is a matter for the Bar Council, but we should adhere to the Law Society of Scotland’s suggestion of careful post-legislative scrutiny of how legal professional privilege will work in practice.
The two huge concerns I still have about the Bill relate to internet connection records and bulk powers. I have already spoken about the limitations in how we have dealt with the bulk powers review and the fact that, in my opinion and that of many others, it does not deal with the issues of necessity and proportionality.
On internet connection records, I welcome the limited safeguards introduced by the Lords, in particular, the threshold increase on serious crime, judicial approval for data retention notices and prohibition of the retention of third-party data, which we were quite agitated about in Committee. But it is a matter of regret that the Bill still includes provisions dealing with the collection of internet connection records that go beyond anything that any other western democracy has on its statute book and that, as the shadow Home Secretary said, may be of dubious legality.
The fight for our civil liberties concerns about the Bill has been lost in this House, but, as the shadow Home Secretary suggested, it is likely to continue in the courts. Liberty is representing the hon. Member for West Bromwich East (Mr Watson) in a legal challenge to existing surveillance laws. As the shadow Home Secretary said, the Government have ignored the opinion of the advocate-general in the Court of Justice of the European Union on these issues, which was that current provisions lacked vital safeguards. To my mind, that means that when this Bill becomes law it will be open to immediate challenge.
The Bill is certainly the better for its passage through the Lords, although it pains me slightly to say that, as someone who does not approve of the House of Lords—not because I do not approve of a second Chamber but because I think that it should be democratically accountable in some way. However, I do not believe that what was promised of the Lords, and expected by some on the Opposition Benches, on the protection of civil liberties has come to fruition.
It is a matter of the greatest regret that peers supported the internet connection record powers just hours after the Investigatory Powers Tribunal had ruled that the security agencies had been unlawfully scooping up personal confidential information on a massive scale for more than a decade. I was repeatedly told regarding my objections to the Bill that our security agencies are the best in the world and never break the law. I suspect that it is close to the truth that the British security agencies are, if not the best, among the best in the world; but they do sometimes break the law. No one is infallible. We must have safeguards that are real. It is noteworthy, and an indication of the inadequacy of the scrutiny of the Bill that, only hours after the Investigatory Powers Tribunal ruled that unlawful action had taken place, the Lords supported the provisions on internet connection records in their totality.
It seems that the battle has been lost in this House. But given the very real concerns I and others have about the lawfulness of aspects of the Bill, I suspect the battle may be won elsewhere.
Huw Merriman (Bexhill and Battle) (Con)
I am pleased to follow my hon. Friend the Member for Fareham (Suella Fernandes) and to speak in support of the Bill.
In March 2016, David Anderson, QC suggested that this Bill
“charts a bold route forward—and gets the most important things right”.
He went on to say that it
“restores the rule of law and sets an international benchmark for candour.”
He suggested at that time that some matters remained to be resolved, but as the Government’s support for these Lords amendments demonstrates, there has been cross-party co-operation and support both in this House and in the other place. The Bill is all the better for it.
This relative consensus is well demonstrated by the remaining amendments, just rejected, relating to press regulation. There were, of course, concerns prior to my election to this place, that a Bill of this type could be construed as a snoopers’ charter. The fact that we have just had a debate on Leveson speaks well of the progress made on this Bill. The fact that we have got to this positive position is, in my view, in no small part due to the Government’s acceptance of suggestions made across the political divide and their taking of the three independent reviews as a starting-point for this legislation.
It is worth considering that the first report, the Anderson report, called for a new law that would be both comprehensive and comprehensible. The second report, from the Intelligence and Security Committee of Parliament, said that the
“legal framework has developed piecemeal, and is unnecessarily complicated.”
That, it said, had resulted in a
“lack of transparency, which is not in the public interest.”
The third report, produced by the Royal United Services Institute, called for a
“radical reshaping of the way that intrusive investigative techniques using the internet and digital data are authorised”,
and said that it should be
“subject to judicial scrutiny”.
The Bill delivers on all those fronts. It gives our law enforcement and intelligence agencies the power that they need to keep us safe. It brings together all the powers that are already available to those agencies before they are due to expire following the judicial review of the Data Retention and Investigatory Powers Act 2014, and gives them additional powers to catch up with new technology and the web. It introduces a double lock for the most intrusive warrants, providing judicial oversight and creating an investigatory powers commissioner. It not only delivers comprehensive legislation with safeguards, but gives the security agencies the power to keep up with technology that is being used by those who seek to do harm to our constituents.
That takes me back to the words of David Anderson, QC. Last month, in Strasbourg, he spoke to the Committee on Legal Affairs and Human Rights, a Committee of the Parliamentary Assembly of the Council of Europe—of which I am a member—about these powers and about the threat posed by terrorists across Europe. During the same session, the threat was brought home most powerfully by another speaker. This lady, a Parisian, had lost her daughter to the terrorists who were responsible for the Bataclan massacre in Paris. Her words, and her pain, were incredibly moving for all who listened. She demonstrated to us how difficult her life had become, and also the terror that her daughter had experienced in her final hours. That brought home to me the need for us in this place to do everything we can to ensure that we never have to hear testimonies like that from our constituents across this nation, and it is on that basis that I shall be very pleased to see the Bill become law.
Mr Wallace
I wish to place on record our gratitude to the Labour party, the Liberal Democrats, the Scottish National party, and the Opposition Front Benchers—the right hon. Member for Leigh (Andy Burnham) and the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and, in the other place, Lord Murphy of Torfaen and Lord Rooker—for their contribution to making the Bill what it is today. We must ensure that it proceeds in a spirit of consensus, and I therefore approve of the provision in clause 232 for a review of the Bill in five years’ time. Obviously I must also express my gratitude to the Prime Minister, who helped to shape the Bill and to introduce the important powers that it gives our security services and police to help them to do their job.
I thank my hon. and learned Friend the Solicitor General, my right hon. Friend the Member for South Holland and The Deepings (Mr Hayes)—the former Security Minister—and the Chairman of the Intelligence and Security Committee, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). They, too, have made a considerable contribution. I also thank the SNP, including the hon. and learned Member for Edinburgh South West (Joanna Cherry), although she seemed rather cynical about the Bill in her more recent contributions. I recognise that the support of the SNP goes a long way towards the application of the Bill in the United Kingdom; it is important that we all embrace its aims.
A long time ago, in a different life, I did some of this stuff when there was no regulation, before the introduction of the Regulation of Investigatory Powers Act 2000. We are now in a much healthier place: a place with scrutiny, oversight and an understanding by all of matters that, in the old days, we did not even avow had happened. We should not underestimate the distance that we have come since days gone by. We have come a very long way since then, and I am proud of what the Bill gives us, and gives the men and women who need in to keep us safe.
Having had conversations with colleagues overseas, I know that people are envious of this Bill. We should not forget that, at this moment, there are people in Germany and France who face a much greater threat to life and liberty. There are forces of law and order that are struggling to come to terms with the modern threat, sometimes with legislation that is out of date. I think that by introducing this Bill we have brought ourselves up to date, and that we are now in a position to tackle the threat. I am grateful to the whole House, and to members of all its political parties, for supporting the Bill.
Lords amendment 1 agreed to.
Lords amendments 2 to 10, 16 to 337 and 340 to 377 agreed to.
Ordered, That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments 11 to 15, 338 and 339;
That Ms Diane Abbott, Victoria Atkins, Robert Buckland, Joanna Cherry, Nic Dakin, Andrew Griffiths and Mr Ben Wallace be members of the Committee;
That Mr Ben Wallace be Chair of the Committee;
That three be the quorum of the Committee;
That the Committee do withdraw immediately.—(Christopher Pincher.)
Committee to withdraw immediately; reasons to be reported and communicated to the Lords.