Investigatory Powers

Baroness Jones of Moulsecoomb Excerpts

Wednesday 8th July 2015 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, there have been a number of reports into the use of investigatory powers by public agencies in the UK. Indeed, I published my own report, which looked at the Metropolitan Police’s use of undercover police, at the Regulation of Investigatory Powers Act and at police databases. I found that the police had overreached and misused their powers, aided by illiberal legislation that is not fit for purpose and, of course, a mayor who was happy to turn a blind eye rather than champion civil liberties. Today I will limit my comments to David Anderson’s report. Like many noble Lords, I welcome several of its recommendations.

I am pleased that David Anderson found that RIPA is not fit for purpose and should be replaced. This is something that the Green Party called for at the last election and we had in our manifesto. RIPA has failed. It fails to regulate the actions of undercover police officers, to support the confidentiality of journalistic sources and to protect legal privilege, and it certainly does not provide a proper and open right of redress via the Investigatory Powers Tribunal.

I am also pleased that Mr Anderson recommends that the new legal framework that replaces RIPA should comply with international human rights standards. I find this particularly relevant when the Government are indicating that they would consider withdrawing from the European Convention on Human Rights. I would welcome clarification from the Government of the implications of this new legal framework if we were to leave the ECHR.

I welcome the recommendations for judicial approval for the interception of communications rather than the current arrangement involving the Secretary of State. In practice, Ministers are not held to account for warrants because it is an offence to disclose that a warrant has been granted and because of the Government’s policy of “neither confirm nor deny” on security matters. Were questions to be asked here or in the other place about the specifics of an intelligence operation they would not be answered. When questions of security are asked, the common response is “operational issues” and the stonewalling of NCND. This lack of accountability is partly why I welcome the move to judicial approval.

I also think that the idea of replacing the three existing oversight commissioners with a single independent surveillance and intelligence commissioner is to be welcomed. I believe it would provide greater safeguards around the use of metadata, as well as the increased safeguards needed for lawyers, journalists and others who handle privileged information.

By contrast, some aspects of the report do not go far enough and cause me concern. For example, I am pleased that Mr Anderson recognised that the role and jurisdiction of the IPT should be expanded. However, I do not think his report goes far enough. I do not believe that the IPT should hold proceedings behind closed doors. Instead, cases should be brought in open court, subject to closed material procedure or public interest immunity framework. This would provide greater transparency and allow for secrecy where necessary.

I question the bulk collection of external communications—those sent from and into the UK. While Mr Anderson says it should continue, subject to “additional safeguards”, I would like to see a far more robust case put forward from the police and security services which makes clear why blanket non-targeted surveillance is more effective than targeted operation-led powers. I found the information provided in the six agency case studies in the report to be limited. I remain to be convinced that the results achieved could not have been achieved using targeted surveillance.

I am pleased that Mr Anderson states that no operational case has been made for requiring service providers to retain records of users’ interactions with the internet—so-called web logs—as proposed by the draft communications data Bill, better known as the snoopers’ charter. I am pleased that he has questioned the lawfulness, intrusiveness and cost of the proposals. His report also points out that no other EU or Commonwealth country requires the blanket retention of web logs; in fact, Australia has recently prohibited this in law. I hope the Government and Home Secretary will pause for reflection on why we alone need such a power.

This report also touches on the use of undercover state agents, or covert human intelligence sources. I accept that this was not the focus of David Anderson’s report but it is an area where I have huge concerns. The House is probably aware of the cases of several women who were deceived into long-term intimate sexual relationships with undercover police officers. Their testimony to the Home Affairs Select Committee laid bare the life-changing consequences these women suffered. I am concerned that, as it stands, RIPA still authorises sexual relationships by state agents. I find this quite alarming. If Parliament thinks that state agents should have this power, which I do not, or that there should be limitations to it, that must be part of the debate we are having. If RIPA is to be replaced then its replacement must clarify the law in this area.

I also draw the House’s attention to a particular aspect of RIPA which I find inconsistent and in need of reform. Different forms of intrusive surveillance are authorised at different levels. For example, interception of communication requires authorisation from the Secretary of State. On the other hand, the authorisation of direct surveillance, including the activities of an undercover police officer, requires only the authorisation of another police officer. It is worth pointing out at this stage that most of the investigatory powers used to obtain communications data are so used by the police and not the security services. I believe that the highly intrusive nature of an intimate relationship with a state agent, presenting as someone else, is capable of being far more intrusive than the interception of communications. I should therefore like to see judicial authorisation for undercover state agents.

In conclusion, I hope that this report leads to a proper debate on these issues, but in order to have a rational and proper debate we must stop describing the threat we face as unprecedented. It is, as Mr Anderson explains, a “surprisingly common” mistake. As someone who has had a file held on a police database of domestic extremists, I am concerned by systems of surveillance which are not clearly defined, targeted and publicly held to account. The past few years have seen revelations that GCHQ spied on Amnesty International, that undercover police have been sent to spy on those campaigning for police accountability, and that RIPA has been used to violate lawyer-client privilege. It really is time that we had a proper debate. There should be clear rules and processes around obtaining data. It should not be easy for the state to obtain communications; that is the cost of privacy in a free society. It is our role to challenge the police and security services to provide a proper case, supported by evidence, for any additional powers that they need or request to do their job. Those who challenge the police and security services do not do so because we are unaware of the threat that we face. We do so to protect the very values that terrorism seeks to undermine.