Investigatory Powers Bill

Debate between Keir Starmer and Victoria Atkins

Report: 1st sitting: House of Commons
Monday 6th June 2016 Commons Chamber

[Keir Starmer]

I am grateful for that indication.

[Victoria Atkins (Louth and Horncastle) (Con)]

Section 6 of the Human Rights Act requires public authorities to have regard to the Act in any event, so I wonder what advantage the hon. and learned Gentleman thinks referring to the Act in the Bill will have.

[Keir Starmer]

I am grateful for that intervention, because it drives us back to the point of the privacy clause, which we debated in Committee and which has been debated elsewhere. It is important for three reasons. First, this is a statement of principle about the important interests and duties running through the Act, and it is important to have that statement in the Act. It avoids inconsistency and reminds decision makers of the importance of taking into account privacy, the integrity of data, human rights and so on in all cases, so this is a matter of principle.

The second reason why our new clause is important is that of practical considerations. I worked with the Police Service of Northern Ireland for five years in relation to its compliance with the Human Rights Act. Having structures and decision making written into everything it did helped it to reach better decisions, and I am sure it is the same for other police forces and for public authorities. Never underestimate the practical application that such a clause has in real time for people in public authorities trying to do their job. The third reason—I will come back to this in a minute—is that our new clause gives real teeth to the test that the judicial commissioners apply, because there would be a link between the privacy clause and the test.

Investigatory Powers Bill (Eighth sitting)

Debate between Keir Starmer and Victoria Atkins

Committee Debate: 8th sitting: House of Commons
Tuesday 19th April 2016 Public Bill Committees

[Victoria Atkins (Louth and Horncastle) (Con)]

The hon. and learned Gentleman will appreciate I was not chairing the Committee, so this is very much my own impression of what went on. Lord Murphy was, as one would expect, very keen to accommodate the service providers and the Committee Clerks proposed several dates. We were grateful for the written evidence and formed the view we did, but it would have been nice if they could have fitted us into their busy schedules.

[Keir Starmer]

We probably will not gain much by arguing the detail, particularly as I was not there. The point that the service providers wanted to get across was that in principle they did want to give evidence. They gave written evidence. It was simply that the dates would not work for them as a group, rather than any unwillingness to share their concerns.

The Minister for Security raised a point about the Sheinwald arrangements and the progress being made. As I said a moment ago, these amendments are intended to foreshadow the—I hope—new world of working arrangements, which will cover not only evidence for use in prosecutions but the facilitation of the exercise of powers of this Bill in much faster time than some of the current mutual assistance agreements. The Minister made a further point about the differing views of the companies concerned. There are different views about some aspects of the Bill, but on the issues of extraterritorial application they speak with one voice.

There is an important broader issue to put on the table. As we move forward to international agreements, particularly with the US, it is very important that not only our Government but the US Government are comfortable with the arrangements, because whatever arrangements are put in place will be reciprocal.

Finally, may I hand a schedule to you, Ms Dorries, to the Minister and his team and to the hon. and learned Member for Edinburgh South West? I do not intend to speak at great length to this document, which was prepared for me. What it points out is the inconsistency in approach on extraterritorial jurisdiction. It is quite telling in a number of respects. It tracks whether there is extraterritorial jurisdiction, which clauses give rise to it, whether there is a reasonableness test or a reference to conflict of laws built in, whether it is enforced by overseas service providers, whether there is an international mutual assistance framework and whether there is an obligation on the Secretary of State to consult. What struck me when I went through the document was the inconsistencies. If they are intentional inconsistencies that can be defended, all well and good. I am simply bringing it to the Minister’s attention that we have found these apparent inconsistencies. If they are not intentional, it might be a good idea if somebody looked at them to tidy up the provisions and ensure that where they should be consistent, they are.

Investigatory Powers Bill (Fifth sitting)

Debate between Keir Starmer and Victoria Atkins

Committee Debate: 5th sitting: House of Commons
Thursday 14th April 2016 Public Bill Committees

[Victoria Atkins]

This is just a gentle observation to those who have lobbied the hon. and learned Gentleman. It is a very great shame that they did not feel able to give oral evidence to the Joint Committee to explain those points themselves. They declined our invitation, and now they are relying on the hon. and learned Gentleman to make those points for them. Is it not a shame that they declined the opportunity to make those points themselves?

[Keir Starmer]

I am afraid I am not in a position to answer one way or the other. I do not know the background to that. I will make the points to the best of my ability in the time available, but I will also encourage them—

Investigatory Powers Bill (Fourth sitting)

Debate between Keir Starmer and Victoria Atkins

Committee Debate: 4th sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[Keir Starmer]

To some extent the amendments overlap with the discussions we will no doubt have on clause 21 and new clause 5. The effect of this group of amendments is to replace the Secretary of State with the judicial commissioner as the primary and only decision-maker in relation to these categories of warrants.

This morning, the Minister said that he was surprised that we had tabled these amendments and I will give him three short answers to that. The first is that from the outset the Labour party called for judicial authorisation before the concept of the double lock was introduced. That was our primary and preferred position. Obviously, the introduction of the double lock, which involves a degree of judicial authorisation, is somewhat better than the Secretary of State being the sole determining decision-maker. Therefore the fact that we are supportive of a situation that is better than the current situation is hardly enough to knock us out from our primary position. The third position—and this is why it overlaps with clause 21—is that to some extent this all depends on what role the judges have. If they are nearer to decision-makers under clause 21, the relationship with the Secretary of State is very different from the position if they are simply long-arm reviewers. I will reserve that for the discussion we will have on clause 21.

So far as the principle in favour of these amendments is concerned, I can be clear. They have been drafted to reflect, as far as possible, the detailed proposals of David Anderson in his report. Members of the Committee have probably seen that they are deliberately drafted to reflect the approach that he suggested was right—particularly when one takes into account new clause 5. I will summarise his reasons, rather than reading them verbatim, laid out in paragraphs 14.47 and 14.57 of his report. He indicates four reasons for the proposed structure. The first is the sheer number of warrants that the Home Secretary has to sign per year. As he sets out in paragraph 14.49, there are thousands of warrants per year, details of which are in the footnotes. Dealing with those warrants is a huge imposition on the Secretary of State’s time, and they could be dealt with in a different way.

There is an important sub-issue here. Points have been made, this morning and on other occasions, about the accountability of the Secretary of State in relation to national security and foreign affairs. I understand how and why those points were made. As David Anderson points out, 70% of the warrants that the Secretary of State routinely signs off are in fact police warrants that do not raise issues of national security or matters of foreign affairs. In many respects, they are no different from the sorts of powers that the police exercise when they search and seize, or exercise other powers available to them through the usual routes of going to the Crown court. His starting point is that it is no longer sensible for the Secretary of State to handle these thousands of cases, particularly since 70% are in fact police cases, not involving national security or foreign affairs.

Secondly, in paragraph 14.50 David Anderson deals with improving public confidence. Thirdly, at 14.51 he deals with the position in the US, where there is a growing insistence that if warrants are to be complied with by those in the US, judicial sign-off of the warrant is required. David Anderson’s concern was that, unless we move to a different system, we might find that warrants would not be honoured when we needed them to be honoured in other jurisdictions. That is obviously a serious point that I know the Government have taken into account.

The fourth reason, in paragraph 14.52, is that there is an established and well-functioning system for judicial approval by commissioners in comparably intrusive measures, when applied for by the police. He lists them as property interference, intrusive surveillance and long-term undercover police operations. Other police activities that require to be warranted go straight to the commissioner, not via the Secretary of State. Since 70% of those cases are the police exercising not dissimilar powers of interception under warrant, there is a powerful argument to say that that category of cases, if nothing else, ought to go straight to a judicial commissioner. That would be modelled on David Anderson’s analysis, for the reasons that he has set out in those paragraphs.

I would like to highlight paragraph 14.56(a), because it has been said today and on other occasions that an important political accountability goes with the role of Secretary of State in relation to these warrants. Yes, that is the case to a certain level, but it must not be misunderstood. I have yet to find an example of any Secretary of State from any political party, certainly in recent history, ever accounting to Parliament for an individual warrant.

[Victoria Atkins]

What I genuinely do not understand about this argument is that, given that the Secretary of State is not permitted or authorised to account publicly for a warrant, how on earth will that be any different for a judicial commissioner? The nature of the material is sensitive, regardless of whether it is reviewed by the Secretary of State or by the judicial commissioner.

[Keir Starmer]

The point I am making is not that that judicial commissioner could be more accountable, or that there would be some forum in which the judge could go and explain. I completely accept that that is a limitation. I am meeting the argument against this proposal, which is that at the moment the Secretary of State has some political accountability which would be reduced or taken away if this amendment were accepted.

The point David Anderson makes is that it is of course a criminal offence to disclose that the warrant has been signed, so in fact the Secretary of State could not go to the Dispatch Box even in an extreme case. She would commit an offence if she went to the Dispatch Box to be held accountable for an individual decision. That is exactly why David Anderson writes as he does in paragraph 14.56 of his report. If any other members of the Committee have found an example of a Secretary of State ever actually being held accountable for an individual warrant, I personally would like to see the Hansard report of that taking place.

--- Later in debate ---

[Keir Starmer]

I have already accepted the general proposition that if some catastrophe occurred, the Secretary of State would be required or expected to make a statement, setting out what in general terms had been done. I accept that level of political accountability. I am talking about the specifics of signing off warrants and, therefore, what would be lost if the Secretary of State’s role were taken over by the judicial commissioner. There is a question of deference on national security and foreign affairs, but we will get to that when we reach clause 21, because that deals with the scope of review by the judicial commissioner. The point I was making before the interventions, however, was drawing attention to David Anderson’s paragraph 14.5, in which he sets out the reasons why the political accountability card is overplayed.

[Victoria Atkins]

The hon. and learned Gentleman may recall that we had the privilege of listening to two Labour Home Secretaries, Lord Reid and Charles Clarke. I asked Mr Clarke about his relationship with the security services and his experience of warrantry in the dreadful hours following the 7/7 bombings. I asked him how useful or important that was in the vital hours thereafter and his answer—I will be quick, Mr Owen—started with the words “critically important”. Does that affect the hon. and learned Gentleman’s view in any way?

[Keir Starmer]

No, it does not. With all due respect, thinking on accountability and safeguards in this field is on the move. The sort of regime that was perhaps thought appropriate five, 10 or 15 years ago is now accepted as not appropriate. One of the points of this legislation in many respects is to bring it up to date and make sure that scrutiny and safeguards are more powerful. The fact that an ex-Home Secretary thinks their role was very important and need not be interfered with did not surprise me, but neither did I find it persuasive.

I have probably exhausted my point. The amendments are intended to reflect the position set out by David Anderson for the very good reasons that he draws attention to in paragraph 14.56(a): the political accountability card is overplayed in resisting this argument.