Investigatory Powers

Lord Bates Excerpts

Wednesday 8th July 2015 Lords Chamber

Moved by

[Lord Bates]

That this House takes note of reports into investigatory powers.

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, I am grateful that we have the opportunity to debate this very important issue today. As my right honourable friend the Home Secretary made clear on publication of David Anderson’s report, Parliament should have an early opportunity to debate these matters in full. The Government will bring forward detailed legislative proposals in the autumn, which will build on David Anderson’s recommendations, as well as those that the Intelligence and Security Committee of Parliament published earlier this year and the forthcoming report by the Royal United Services Institute for Defence and Security Studies, both of which have benefited from the knowledge and expertise of a number of noble Lords. Those proposals will be subject to full pre-legislative scrutiny by a Joint Committee of both Houses of Parliament. Before then, today’s debate affords a vital opportunity to understand the views of your Lordships’ House.

I note the considerable expertise from which we will benefit today. We will hear from the distinguished chair of the Joint Committee that scrutinised the draft communications data Bill in 2012, my noble friend Lord Blencathra. At the time, the Government accepted the substance of all of the committee’s recommendations. Had we been in a position to bring forward a revised communications data Bill, I have no doubt that it would have carried the confidence of this House and of the other place. David Anderson’s own recommendations are very close to those of that committee

We have noble Lords speaking in the debate with significant experience of the security agencies’ work such as the noble Baroness, Lady Manningham-Buller, while the noble Lord, Lord Butler of Brockwell, was a Cabinet Secretary and a member of the Intelligence and Security Committee. My noble friend Lord King is a former Secretary of State for Defence and was the chairman of the Intelligence and Security Committee, and my noble friend Lady Neville-Jones is a former security Minister. The noble Lords, Lord Blair of Boughton and Lord Paddick, both have considerable policing experience, and I am sure that we will hear another side of the argument in the contributions of those who have devoted considerable time to raising the issue of citizens’ privacy rights such as the noble Lord, Lord Strasburger, and the noble Baroness, Lady Jones of Moulsecoomb. We shall also hear from those who are in the position of having to adjudicate and balance the tensions between security and privacy such as the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Judge.

There is of course a balance to be struck between liberty and security, but as my right honourable friend the Home Secretary has said before, it is not a zero sum game. People can enjoy their privacy only if they have security. The right to life, which our anti-terrorism laws seek to protect, is the most fundamental right of all. The Home Secretary has made it clear that no decisions have been taken on David Anderson’s recommendations, which must be considered in the round along with those of the ISC and RUSI. Today’s debate, like that held in another place on 25 June, will inform the Government’s deliberations. Let me make it clear at the outset: we are very much in listening mode. This is not about informing the House of a Government decision, rather it is about listening to the significant views and expertise in this House to help inform the legislation that will be brought forward in the autumn.

I would like to say a little more about David Anderson’s report in a moment, but first I must say a few words about the context of today’s debate. We ask the police and their colleagues in the security and intelligence agencies to keep us safe. That is their first responsibility and it is the reason that we grant them the use, subject to strict safeguards, of intrusive powers. That job is getting harder. The threats to the UK and its citizens are diverse, fast-changing and come from unexpected places. They are difficult to predict and even harder to prevent.

On 26 June, a gunman in Tunisia began executing innocent tourists on the beach at Port El Kantaoui before continuing into the Imperial Marhaba hotel and on to the streets. Some 30 British citizens are confirmed to have died. Our thoughts are with their friends and families, and with the people of Tunisia. It is the very fact that Tunisia has made such a successful transition to democracy which so enrages those who pursue a hateful terrorist ideology. On the same day, terrorist attacks in France and Kuwait killed 28 people and injured more than 200.

The threat level from international terrorism in the UK is “severe”, meaning that an attack is highly likely. In the past year, 165 people were arrested for alleged offences relating to Syria, including terrorist financing, preparation of acts of terrorism and attending a terrorist training camp. Thirteen individuals were convicted in relation to Syria-related terrorist activities. We believe that around 700 people have gone from the UK to Syria and Iraq to fight, many of them to join ISIL, which through brute force and repression controls swathes of territory in Syria and Iraq. And yesterday, of course, saw the 10th anniversary of the bombings on the London transport network in which 52 people lost their lives.

The threat from terrorism has not dissipated in the intervening years. Some 40 terrorist plots have been foiled in the past decade, and as many as four or five prominent plots have been disrupted in the last few months alone. Recent years have seen plots to carry out mass murder and instil fear in our citizens: plots inspired by propaganda on the internet that captures the minds of vulnerable people; plots that target people for who they are and what they represent; plots to conduct marauding Mumbai-style gun attacks on our streets, blow up the London Stock Exchange, bring down airliners, assassinate a British ambassador and murder serving members of our Armed Forces. When these plots succeed, as with the tragic murder in 2013 of Fusilier Lee Rigby, the effects can be devastating. As we debate these issues we must remember that this is not an academic exercise. The cost of getting things wrong is very high.

Of course, this is not solely about terrorism, terrible though that scourge is. Serious crime can also have a devastating effect on communities, whether in the form of cybercrime, drug trafficking or child sexual exploitation. Modern technology, though it has transformed our lives in many wonderful ways, has also made many of these crimes easier to commit, and we need to ensure that our laws keep pace with technological developments to combat them.

David Anderson cautions against describing the threat to the UK as “unprecedented”. However, the means available to those who would do us harm—to spread their message, to co-ordinate their plans and, increasingly, to execute them—are evolving, and it is clear that the means available to stop them must evolve in concert. David Anderson’s report was published almost a month ago, and I hope that noble Lords will by now have had the opportunity to study it carefully. If so, I hope that they will agree with my view that it is a thorough and well-written piece of work and that David Anderson deserves our appreciation and praise for his efforts.

The report covers the full range of investigatory powers. It is worth putting on the record that, broadly, David Anderson concludes that all the existing investigatory powers are necessary, they are appropriately used by our law enforcement and intelligence agencies and that there is no evidence of abuse. That last point, of course, builds on similar conclusions reached by the Intelligence and Security Committee of Parliament. Of course, David Anderson makes specific recommendations about matters such as authorisation, transparency and oversight. These are important issues and precisely the ones which the Government are now reflecting on, and which our debate today I am sure will do much to inform.

Let me deal with the issue of authorisation since it seems to have attracted the greatest level of media interest. Again, let me stress that we have not reached a decision on this matter. There are certainly different views on this issue, as evidenced by the fact that the Intelligence and Security Committee of Parliament strongly endorsed the existing system. I am clear that whatever system is finally decided on needs to be sufficiently agile to deal with urgent cases and to ensure that, in appropriate circumstances where it is necessary and proportionate, those whose communications need to be intercepted are subjected to that interception. We also need to ensure that any decision taken in this area does not adversely affect the relationship between the Executive and the judiciary in relation to other aspects of government power. We need to bear in mind who bears the risk and would be politically accountable were things to go wrong. This needs proper consideration.

Before I move off the subject of warrants, I want to reaffirm that no Home Secretary ever signs an interception warrant in his or her spare time. It is a core function of that office and, as so many noble Lords will attest, it is a responsibility that successive Secretaries of State have devoted proper time to in order to give full and thorough consideration to each and every warrant application put in front of them.

It is the first duty of a Government and the Parliament which sustains them to keep the country and our citizens safe. That means equipping those who are charged with that specific responsibility with the tools they need to do the job that we ask of them. But we also have a responsibility to protect the liberties of our people and to ensure that they are not unduly or unnecessarily interfered with. This Government have a good record in that respect, including replacing control orders, which were being whittled away by the courts, and reducing the maximum period of pre-charge detention.

As I have indicated, the Government approach today’s debate in listening mode. We have not reached firm decisions on all the issues raised by David Anderson. We want to listen carefully to what noble Lords have to say and I look forward to an informed and interesting debate.

--- Later in debate ---

[Lord Bates]

Let me begin by echoing the words of the noble Lord, Lord Rosser, in his closing tribute to the men and women of our security services and the work they do day in, day out, often at significant risk to themselves, to prevent the types of atrocity that we have seen all too often around the world and on our streets here in the United Kingdom.

This debate was styled as a take-note debate, in the terms that we use in this House. I do not propose to respond to each of the points made, because that was not the purpose of the debate. The purpose was simply for noble Lords to bring their incredible experience, knowledge and insight to this forum, so that we could draw upon their comments, observations and questions as we begin the process of preparing a draft Bill for consideration here. Effectively, as I saw it, the debate moved between three stages. The first stage was to recognise the nature of the threat. That was brought into very sharp focus by frequent references to David Anderson’s report. I do not think I have ever previously responded to a debate in which the report that formed the subject of it has so frequently been the basis of the contributions to it. The noble Lord, Lord Butler of Brockwell, will be impressed from an academic standpoint by the number of citations of the report, which shows that it is an incredibly thorough piece of work. I pay tribute to Her Majesty’s Opposition for encouraging us to undertake it. It was absolutely right that we did.

The report outlined the threat before us and identified a determined and ruthless new emerging threat. We found that in the evidence and report by the Intelligence and Security Committee into the death of Fusilier Lee Rigby. The noble Baroness, Lady Manningham-Buller, gave us some insights into the sophistication of the technology and urged us to be agile in our responses to it. The noble Lord, Lord Blair, gave his reflections, in particular on those horrific attacks and planned attacks. The chilling thought of the Loch Lomond effect struck us significantly.

If the threat is there, the second question is: what are we to do about it? That was a very interesting debate. The contributions on law enforcement from the noble Lord, Lord Paddick, and others were very important—that we talk about how we track this. I was conscious of the reference in the report by the former director of GCHQ, Sir Iain Lobban, who said in his valedictory speech that we must “enter the labyrinth”. As my noble friend Lord Blencathra reminded us, that labyrinth is getting more and more impenetrable. We were distinctly helped by my noble friend Lady Neville-Jones, who comes to this from a security perspective and is doing valuable work in informing our response to the cyberthreat facing not only commerce, but society. That complexity is a very important issue.

Let me respond to the contributors who asked whether we are having conversations with internet service providers and communications service providers. That is crucial—if noble Lords go to the appendix of the Anderson report, they will see the list of communications service providers that he interviewed. This is an ongoing process: at the Home Office we regularly meet with communications service providers, both domestically and internationally. Indeed, a senior Home Office official is in the US today holding meetings with companies. We also have my noble friend Lady Shields, who is from the world of social media. She is now Minister with responsibility for internet security.

We also had the very helpful work in 2014 of Sir Nigel Sheinwald, the Prime Minister’s special envoy on intelligence and law enforcement data sharing. His role was created to work with foreign Governments—precisely the point that was asked—and with communications service providers to provide access to data across different jurisdictions for intelligence and law enforcement purposes. Since Sir Nigel’s appointment the Government have expanded their dialogue with the companies but, despite some progress and co-operation, that remains incomplete. We all agree that we need to work on longer-term solutions. The noble Lord, Lord Butler, asked whether I had an update on Sir Nigel’s report, which was presented to the Prime Minister. As we set out in July 2014 when the position was announced, the role of the special envoy has been to conduct discussions and negotiations on data sharing. Any detailed advice relating to his work as a government special envoy remains internal civil service policy advice, helping Ministers to consider a full range of options. However, the Cabinet Office published a summary of his work on its website on 25 June.

The third question is: if the threat is real and serious as virtually all noble Lords have acknowledged it is, and if our police and security services need more powers, how do we ensure that we carry public trust with us? These points were focused on by the noble Lords, Lord Strasburger, Lord Scriven, Lord Blencathra and Lord Paddick. It must be stressed that there are two elements to this answer. First, there is a plethora of people—in fact, some may say too many—overseeing the work of our security services, including the Interception of Communications Commissioner, the Intelligence Services Commissioner and Surveillance Commissioners. All their reports are available in the Printed Paper Office. There is also the Intelligence and Security Committee of Parliament, the Independent Reviewer of Terrorism Legislation, the Investigatory Powers Tribunal, to which I will come back in just a second, and the courts more generally. The noble and learned Lord, Lord Brown, with his significant experience, clearly outlined the way they would approach these issues and the principles they would apply in so doing. The Information Commissioner also oversees this process.

A number of noble Lords referred to, and asked for comment on, the recent Amnesty International case that came before the Investigatory Powers Tribunal, to which I wish to put a response on the record. The tribunal made it clear in its judgment of 22 June that any interception that occurred was lawful, “necessary and proportionate”. We would caution against drawing conclusions from the tribunal ruling about the target of any such interception. A finding in favour of an individual or organisation does not necessarily mean that they themselves were the target. It could equally mean that they were simply in communication with the target. However, we can neither confirm nor deny specifics relating to this or any other case. I am sure that will not fully satisfy noble Lords, and perhaps plays into the caricature developed by the noble Lord, Lord Strasburger, of what he anticipated we might say. However, the serious point is this: we should be proud of not only our security services but the vast swathe of individuals and organisations who diligently oversee the work carried out by our security services to ensure that it is done correctly.

I was asked by the noble Lord, Lord Rosser, whether I could provide some detail on the actual number of warrants that have been signed. I did have that figure to hand, but perhaps I will write to him setting out how this year’s figure compares with that of previous years.

In conclusion, I again thank all those who have contributed—

[Lord King of Bridgwater]

My noble friend did not answer the point that I raised. I think it is generally widely accepted that we are at risk in this country of terrorist attacks, and that at the moment our defences are not as strong as they could be. We believe that measures in legislation which could come forward would protect the nation from the sort of outrages that we have suffered in the past and would provide a better chance of protecting the country. The course on which the Government are now embarked is to go away and prepare legislation and then submit it for pre-legislative scrutiny by a Joint Committee of both Houses, which will take some time. It seems to me that because of the initiative of the Opposition in initiating the Anderson report, on which I congratulate them, we have the most extensive preparation for this legislation: a report that has been very widely respected on all sides of the House.

The noble Lord, Lord Blencathra, who chaired the previous pre-legislative scrutiny Joint Committee, said that the Anderson report meets all the points that his committee wished to raise. Of course, I understand that there are points that still need discussion. One of them, as we know very well, is whether there should be judicial or ministerial approval. But if we have another Joint Committee, it will rehearse the arguments, which are already very well rehearsed, and it will come back to a decision of Parliament. Parliament will have to decide some of the issues that are outstanding.

The advantage of the course that I am advocating is that unless we really want to go down this very extended route, we could actually have better protection in place for all the citizens of our country sooner if we now go ahead, prepare the Bill—drawing on all the advantages of having the Anderson report available—and then put it to both Houses to decide those issues that, I absolutely accept, remain outstanding; they are a matter of debate, and can be decided by votes of both Houses. I say to my noble friend, who has given an admirable response to the debate so far, that I hope the Government will consider whether we really need to have a further, second pre-legislative scrutiny committee, which will take time and leave the country at risk for longer than I believe is necessary.

[Lord Bates]

My noble friend speaks with great authority and experience. He is right to urge us to move as quickly as we can, given the statements that he quoted from the Home Secretary, which were made before the last election under the previous Government, about every day that goes by without these powers. A process has been set out here and the Prime Minister and the Home Secretary have been very clear that because of the importance of taking people with us and, as far as possible, being able to bring this forward in a cross-party way—not just cross-party, but of course including the Cross-Benchers in this House—we ought to be seen to be going through a very thorough process. That involves basing it on the Intelligence and Security Committee, the Anderson report, the RUSI report which is to come and the debates that have been scheduled ahead of time in both Houses before the Recess. There will then be a period to reflect on that over the Recess and the Government can then come forward with a draft Bill that I hope, because it has been deliberated over, will not be subject to the type of criticism that the noble Lord, Lord Blencathra, levelled at the previous Bill. On the basis of that, one might therefore hope or think that the period of time for pre-legislative scrutiny might be shortened, and that the period of time for scrutiny through the House might be quicker than it otherwise would have been had it not been for all the evidence, reports and consideration that have gone before.

I know my noble friend will not accept that answer fully but I hope he will accept that it is an answer and a position which we have taken with great care and consideration to ensure that, as we progress down this path towards reform and to new legislation, which will go much beyond RIPA’s sunset at the end of 2016, we will carry people with us, that it will be better legislation as a result, and that we will progress down that road in a position of trust between those who carry out those duties and the citizens of this country—

[Lord Strasburger]

My Lords, I am reluctant to delay us on an evening when there are some transport problems, but it may have slipped the Minister’s mind that I asked him a question concerning how the Government slipped through powers giving themselves the right to hack into computers and phones without any reference to or discussion in Parliament.

[Lord Bates]

I will check again in the record but I am pretty sure that the answer was that the powers to which the noble Lord referred have been laid before Parliament but will of course have to be approved by Parliament. An approval process will have to be gone through before they can come into effect. While I am looking at my notes, I can save my colleagues from the Home Office a letter by saying that the Interception of Communications Commissioner’s report, published in March 2015, said that there were 2,795 interception warrants in 2014, compared to 2,760 in 2013 and 3,372 in 2012.

Once again, I thank noble Lords for their contributions to this debate. It has been incredibly valuable and I will make sure that it is drawn to the personal attention of my right honourable friend the Home Secretary when the Official Report is prepared.

Motion agreed.