Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Monday 27th June 2016 Lords Chamber

[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.