Investigatory Powers Bill

Debate between Alistair Carmichael and Andrew Murrison

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Dr Murrison]

I certainly rise to support this measure, which has improved enormously during its passage. I cannot think of a measure in my 15 years here that has been more thoroughly scrutinised than this one. Our constituents are going to be very pleased with what we have been doing over the past weeks and months. I have to say to the right hon. Member for Orkney and Shetland (Mr Carmichael), whom I respect very much, that one thing our constituents dislike most about this place is the perpetual protest in opposition, which we hear too often, particularly from his party. It does him no good. This Bill is—

[Mr Carmichael]

Will the hon. Gentleman give way?

[Dr Murrison]

Certainly not. This Bill has been characterised by consensus, and I have been heartened by the constructive attitude that the Labour Front Benchers have taken to this measure, moving from a position of abstention on Second Reading to one of support now. It does them a great deal of credit and has made this Bill very much better. The double lock was a turning point in this measure as far as I am concerned, but may I also say that the privacy clause, new clause 5, is essential for many of us? The Home Secretary pointed that out. We have not had an opportunity to debate it very much today, but new clause 14, on health matters, has also been particularly important for a number of us who had concerns.

Clause 222 has not been debated at great length, but again it is vital because it allows us in five years’ time to come back to this measure to see what more needs to be done and what might be removed. That is particularly relevant in the context of ICRs. We have heard that one outstanding issue relates to the definition and use of ICRs, and I know that the other place will debate that at some length. My right hon. Friend the Minister for Security has referred to it and he is right to do so. I firmly believe that we will want to come back to it in any event in five years’ time, as technology will have changed so much in that period.

In summary, I very much welcome this measure—it is absolutely right. I am convinced that that overwhelming majority of our constituents will be pleased with the assiduity we have applied to this measure and, in particular, with the consensual nature of our debate. It is a great measure. It will give our constituents the protection that they undoubtedly need, while safeguarding their historic liberties.

Wilson Doctrine

Debate between Alistair Carmichael and Andrew Murrison

Monday 19th October 2015 Commons Chamber

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I congratulate the hon. Member for Rhondda (Chris Bryant) on his initiative in applying for the debate, and I congratulate you, Mr Speaker, on granting it. It is a timely and necessary debate, and it has been a good debate so far. If anything about it disappoints me, it is the fact that the House has been rather less full than I hoped. I suspect that if at the heart of the debate were a more specific suggestion that Members’ communications had been intercepted, the Benches would have overflowed. I am afraid that this really is not good enough. If I may borrow a phrase from another part of the political lexicon, we need to mend the roof while the sun is shining. It is at this moment, when we are not under the immediate pressure of allegations of that sort, that we should be considering this matter in the context of the broadest possible principles.

I welcome the Home Secretary’s clarification that she considers the Wilson doctrine to be a live doctrine which continues to operate, but I echo the concern expressed by others this evening about just how meaningful it is in 2015. As I said to the Home Secretary in my intervention, we now have a very different constitutional framework, a range of very different ways in which communication is undertaken, and a range of different matters in which Members of Parliament now routinely intervene, many of which had not even been envisaged in 1966.

I am a great fan of the flexibility of the British constitution when, through the operation of doctrines and conventions, it is capable of responding in a way that has common sense at its heart. Sometimes, however, those doctrines and conventions become overused, and, by virtue of the introduction of other legislative frameworks, of which RIPA is one of the most obvious examples, reach a point at which they no longer serve the purpose for which they were originally intended. That, I suggest, is the point that has now been reached.

A remarkable aspect of the debate is the existence of broad agreement. From the speech of the right hon. and learned Member for Rushcliffe (Mr Clarke) onwards, it has been clear that if we undertake this in the way in which we, as parliamentarians, ought to undertake it—openly, and accepting that we all act in good faith—it should be possible to construct a Wilson doctrine for the 21st century, which will, I fear, now have to be enshrined in statute. I hope that a draft regulation of interception Bill, at least, will give us an opportunity to consider how that might be done.

I think it is a matter of broad consensus—I have heard no one suggest otherwise tonight—that the people who stand to benefit from the operation of the doctrine are not Members of this House or, indeed, of the other place, but our constituents. That, I think, is a principle that has not changed since 1966, and one that should be at the heart of any statutory codification. There has also been universal agreement on the principle that Members of Parliament should not be above the law. However, when it comes to people not being above the law, that should of course include the Home Secretary, and anyone else who would be required to sign a warrant in respect of matters such as this. For that reason, I suggest that a degree of judicial oversight of some sort should be incorporated in our new measures.

[Dr Murrison]

I am listening to what the right hon. Gentleman has to say with a great deal of interest, and I agree with much of it. Does he agree with me, however, that it is slightly important for us to take the public along with us? They will see—and the press has been reflecting it recently—that this simply means parliamentarians putting themselves above the law. Can he define precisely what concerns him about MPs’ relationship with their constituents, and, perhaps, contrast it with what applies to those in other professions, such as healthcare workers, lawyers and journalists? Perhaps, as he comes from Scotland, I can press him further, and ask him whether he regards this as an argument for first past the post, given that we would have to examine the relationships of list MSPs compared with constituency MSPs. Is he concerned primarily about the relationship between a constituent and a constituency MSP or MP?

[Mr Carmichael]

Let me answer the hon. Gentleman’s second question first, while I can still remember it. I must tell him that list MSPs have constituents as well, but over a much wider range of areas. As for the question of the description, it is a little like an elephant: it is difficult to describe, but you know it when you see it. That is the sort of work that needs to be done, and I believe that it can best be done on a cross-party basis. While we have the time and the space, we should be constructing a new system which is capable of maintaining and commanding the confidence of people across the House, whichever party happens to be on the Treasury Bench at any given moment.

My intervention on the Home Secretary’s speech was prompted by her interesting use of the term “the spirit of the Wilson doctrine” in relation to parliamentarians who are not here or in the other place, but in the devolved legislatures: the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly. I think that there is a fairly simple principle at stake, namely that when we devolve power, we should also devolve the privilege that goes with power. The hon. Member for South West Wiltshire (Dr Murrison) invited me to contrast our position with that of other professionals, such as lawyers, doctors and journalists. I would not contrast it, but I would say that, in many ways, we have the same reasons for such privilege. I say that as a former solicitor. The hon. Gentleman is a medical practitioner, and he understands that there are good and compelling reasons for the extension of privilege to those professions in the way in which it was extended to what is done in the House of Commons.

[Dr Murrison]

Does the right hon. Gentleman agree with both the Home Secretary and my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) that in the upcoming legislation it would be better for the professions that deal with people and their issues to be dealt with en bloc, so that the public do not see politicians as being in a particular group on their own, and are therefore more likely to understand the need for certain exchanges to be privileged?

[Mr Carmichael]

I caution the hon. Gentleman, without necessarily disagreeing with him, that we should not allow the best to be the enemy of the good. Ideally, that is the point that we should reach, but if we wait until the standing of the House of Commons, and that of politics in general, is so high that we will not be subject to public criticism for doing what remains the right thing to do, I am afraid that we shall end up waiting for a very long time.

I mentioned the devolved legislatures because it is apparent from reports in the Daily Record that there has been a change of policy. According to the Daily Record, before March 2015 the guidelines given to the security services stated:

“As a matter of policy, GCHQ applies the principles of the Wilson doctrine to Members of the House of Commons, Members of the House of Lords, UK MEPs, and members of the Scottish, Welsh and Northern Irish assemblies”—

however inaccurately they may have been named there. In June, however, it was reported:

“The doctrine does not apply to…the interception of communications of Members of the European Parliament or devolved assemblies.”

If that is the correct statement of the advice, and I have not seen it challenged anywhere, clearly there has been a change. We are entitled to ask why that change was made and in principle why Members of the Scottish Parliament or Welsh or Northern Ireland Assemblies should be treated any differently from Members of this House. The hon. and learned Member for Edinburgh South West (Joanna Cherry) made the point that they have a democratic mandate and duties of democratic accountability in the same way we do. On that basis, there should be no reason for them being treated differently.

As I said at the start, the time for the ability to regulate these matters through adoption or convention is well and truly behind us. There is a clear need for a measure of judicial oversight. In that way, we can ensure confidence, and it is in the interests of the Treasury Bench that the decisions taken command confidence in this House, in other places and across the country with the public as a whole.

The right hon. Member for Haltemprice and Howden (Mr Davis) said that it would be suggested that if we have nothing to hide, we should have nothing to fear. The question is not about what we have to hide or fear, it is about our constituents.