Counter-Terrorism and Security Bill

Debate between Lord Beith and Diana Johnson

Tuesday 9th December 2014 Commons Chamber

[Diana Johnson]

If the hon. Gentleman will be little patient, I shall move on to that subject in a few moments.

As I was saying, the Opposition accept that this extra category of data will be a vital tool for law enforcement—not just in protecting national security, but in combating a whole range of online crimes, including online child abuse, on which I shall speak in greater detail when we come on to new clause 2. The provisions for this extra category of data were first proposed in the Government’s ill-fated draft Communications Data Bill—I think that might help the hon. Gentleman in respect of his intervention. Although initially reluctant to provide any public evidence for why these extra data were needed, the Government did then provide the evidence that convinced the Joint Committee on the draft Bill of the necessity of this extra retention. The draft Communications Data Bill has been subject to much coalition grandstanding over the past few years, with the Home Secretary proposing a Bill of unprecedented, and in our view unnecessary, scope, while the Deputy Prime Minister refuses to accept the need for any legislation at all. Of course there was room for compromise and the Opposition have always supported this compromise. Some additional data retention is required, but not on the scale the Home Secretary proposed.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

How can the hon. Lady say that my right hon. Friend the Deputy Prime Minister did not see the need for any legislation at all when we are sitting here in this Committee this afternoon considering the legislation which we think properly balances the privacy issues with the need for public safety?

[Diana Johnson]

The right hon. Gentleman has made his point, and we will obviously disagree on what I have just said.

Our view, agreed with by most of the Joint Committee on the draft Bill, is that the data required to link an IP address to a device is one such category of data that is required and therefore we welcome what in principle clause 17 seeks to achieve. I say “in principle” because we do have some concerns about the drafting of clause 17, which is why we have tabled amendment 5.

--- Later in debate ---

[Sir Alan Beith]

The hon. Lady has produced a formidable list of questions, but I only have one for her, on amendment 5. It seems to me that the process we are describing does not enable people to discover who the user of an instrument was; it locates or identifies only the instrument from which the communication was made. Therefore, amendment 5 would be inoperative, because it could never be demonstrated that it was being used to establish who the user was as it cannot be guaranteed to do that.

[Diana Johnson]

I am grateful for the right hon. Gentleman’s observations on amendment 5. As with the previous grouping, the amendment was tabled to give us the opportunity to look at the specifics of clause 17 and to understand fully the thinking behind the Minister’s approach. I take on board what the right hon. Gentleman has said, which may be correct, but the amendment allows us to debate what would be disclosed and what information would be available.

I have just bombarded the Minister with a whole range of questions and I know that, as usual, he will be very thorough and go through each in turn. However, I want to turn briefly to new clause 2, which seeks to move on from the retention of data to a review of whether the form of storing the data is allowing the key authorities to access it in a timely manner. I will say, so everyone understands where I am coming from, that this proposal aims to probe the Minister’s argument, and to look at the clause to see what more can be done and whether we need to be aware of any issues for companies.

My concern arises from the police’s apparent problems in pursuing the majority of suspected paedophiles identified through Operation Notarise. My understanding is that Operation Notarise identified between 20,000 and 30,000 individuals whom the communications data suggested were taking part in online abuse. From that, only 700 people have been named, investigated and arrested, so well in excess of 20,000 IP addresses have been identified, but that information has not been translated into named users. At this point, I am not even talking about arrests, but about identifying the users to enable effective safeguarding interventions.

Once a user is identified, even if it is just an address, the police can make several key checks: first, against the police national computer to see if there is a known sex offender living at the address; secondly, against the Disclosure and Barring Service database to identify anyone who might be working with or have access to children; and thirdly, against the Department for Work and Pensions database to see if a child is registered at the property for the purpose of claiming child benefit.

At the moment, the police do not know how many of the people they have identified are known sex offenders working with children or living with children. Most people would see that as unacceptable and would believe there should be a response. This could start with a review of the degree to which the difficulty of linking IP addresses to users is behind the police’s problems with moving this forward.

Finally, I turn to the amendments and new clauses tabled by my hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Islington North (Jeremy Corbyn), and by the hon. Member for Brighton, Pavilion (Caroline Lucas), on the degree to which RIPA is being used to access the records of certain professionals, including journalists. They address a real concern that Members and the general public have about the use of RIPA to access the records particularly of journalists and those in the media.

As the shadow Home Secretary, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), has said, this issue has to be addressed. Indeed, a key concession secured by the Opposition during the passage of the DRIP Bill was that a review of RIPA would be conducted by David Anderson QC, the independent reviewer of terrorism legislation, and that it would include the use of RIPA to look at the records of journalists. It is because we have confidence in that review that we do not feel amendment 11 is necessary.

However, that is also why the Opposition have a great deal of sympathy with the aims of new clause 1, which would require a court order before relevant authorities could access communications data that could be covered by a professional duty of confidentiality. The clause does not state whether the role of the court would be simply to ensure that due process is followed, or to apply some test of proportionality or necessity. However, the clause provides for the right of appeal for the individual. That means that an individual would have prior knowledge that their communications data were to be disclosed to law enforcement agencies. It is also important to note that the clause would apply not just to journalists but to doctors, lawyers and others, including Members of Parliament, when a professional duty of confidentiality could be construed.

[Diana Johnson]

I have the disadvantage of speaking first on this group of amendments, and obviously, this is not my amendment, so I am very much looking forward to hearing what the proposers feel would happen. However, the hon. Gentleman raises an important point, because we are not only talking about a limited group of people who describe themselves as journalists and who, in the past, we would have been able to identify clearly. Perhaps the proposers of the amendment would be able to address that when they speak to it.

I want to make a further point about the broad definition of professional duty that concerns me, especially when combined with the right of appeal. As I have said, a large number of professionals have some form of duty of confidentiality, and in many cases it is not clear, particularly when discussing communications data, how that potential duty of confidentiality would be separated from other investigations about which we would not allow the individual to have prior knowledge. There is a clear case for preventing a journalist from being targeted for their sources unless there is an overwhelming need to do so. However, the case is less clear in respect of other professions, particularly as we may be investigating issues involving criminal misconduct. Let me give an example for the Committee to consider: the case of Myles Bradbury, the doctor recently convicted of a string of horrendous sexual assaults of boys in his care. As a doctor, he would potentially have been covered by the new clause, especially in respect of some of his communications, and the Committee would be concerned about that. If he had been alerted to the fact that the police were investigating him, he would have had some time to delete much of the evidence which was then used to lead to his prosecution. I just give that as an example of the care we have to take in considering these matters.

I hope the Minister will respond in detail—I am sure he will—to the issues I have raised on this group, particularly the need for the drafting of clause 17 to be made much clearer so that the general public can be reassured about exactly what it is attempting to do.

[Sir Alan Beith]

The hon. Member for Kingston upon Hull North (Diana Johnson) is right to seek clarification to satisfy herself and her colleagues that clause 17 achieves its intended purpose and no more. Its intended purpose is reasonable: to keep up with the technological changes that lead evildoers to move from one technology to another, and become more difficult to track as they do so.

Justice and Security Bill [Lords]

Debate between Lord Beith and Diana Johnson

Thursday 7th March 2013 Commons Chamber

[Diana Johnson]

I want to discuss amendment 75, which deals with the Osmotherly rules, amendment 76, which deals with the protection of ISC proceedings, and amendment 74, which deals with pre-appointment hearings.

Amendment 75, tabled by me and by my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), would remove the Government’s ability to refuse to disclose information to the ISC when it is information “not proper” to be disclosed to a Select Committee under the Osmotherly rules. The Bill currently allows a Minister to withhold information if

“it is information of such a nature that, if the Secretary of State were requested to produce it before a Departmental Select Committee of the House of Commons, the Secretary of State would consider (on grounds which were not limited to national security) it proper not to do so.”

What Ministers are able to disclose to Select Committees is governed by those famous Osmotherly rules, which we discussed in Committee. There are three reasons for withholding information: disproportionate cost, the fact that the information is sub judice, and the fact that it relates to a previous Administration. Our amendment would rule out the use of the Osmotherly rules altogether, although we would be happy for an agreement on cost to be included in the memorandum of understanding, which would achieve the same result.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

The so-called Osmotherly rules were devised by the Executive but were never accepted in any form by Parliament, and were not considered by Parliament’s Committees to have any binding force.

[Diana Johnson]

That is an interesting point, but because of the way in which the Bill is drafted and because of the references that have been made to the use of the Osmotherly rules, we think that there is a case for excluding them completely from the Minister’s decision making.

We do not think that sub judice information should be excluded from the ISC’s hearings, because that might may prevent it from seeing particularly important information. As significant procedures exist to ensure that information will be protected, we should not worry about the ISC seeing the information if it would assist it. We also feel that the ISC should have access to information held by previous Administrations, for two main reasons. First, the matters that the ISC investigates are rarely politically sensitive, although they will be sensitive in other ways. Secondly, the ISC will often be able to investigate an issue only after a change of Administration. Its role is usually retrospective, which means that there will often be a long delay before it can begin an investigation.

[Sir Alan Beith]

The ISC has, on occasion, sought permission from Ministers in a previous Administration to obtain access to material, and indeed has been given it, only to find that current Ministers decline to give permission on other grounds.

[Diana Johnson]

It is helpful to know that. However, time is pressing, so I shall move on to amendment 76. The Minister spent a fair amount of time discussing the amendment and the issues that he considered arose from it. It would exempt all proceedings of the ISC from civil, criminal or disciplinary proceedings¸ which would protect members of the Committee, staff of the Committee, and evidence held by the Committee. In that respect, it extends the protections that the Government inserted in the Bill in Committee, which have now been refined in their amendments 61 and 62.

Before I go into the details of the difference between amendment 76 and the Government amendments, I should establish why these protections are important. They are important because we want witnesses to be able to give full and frank evidence to the Committee, and we want the Committee to be able to receive evidence in confidence. It may be helpful to compare the provisions governing the ISC to the provisions governing Select Committees. Evidence given to Select Committees, whether written or oral, is subject to parliamentary privilege, which means that the evidence cannot be used in any court proceedings against the witness or anyone else.

This is a central tenet of our democracy and allows witnesses to give the frankest possible answers without fear of reprisals. Witnesses giving evidence to the ISC are likely to be particularly mindful of the legal obligations on them. Evidence is likely to be covered by the Official Secrets Act and, technically, an offence would be committed every time a witness exceeded the explicit permission they had been given, which could be frequent.

This may not be the only restriction on a witness’s ability to give evidence. Restrictions are likely to be contained within the witness’s employment contract and the civil service code. Such restrictions have the potential to pose two problems to the ISC. First, they could slow down or prohibit witnesses where there is no genuine need for them not to be able to divulge evidence but it is not clear they have the legal authority. Secondly, they could prevent the Committee from taking evidence from whistleblowers. In recognition of these difficulties, in Committee the Government tabled amendments introducing statutory protection for witnesses, exempting evidence they provided to the Committee from civil, disciplinary or criminal proceedings. Amendments 61 and 62 refine that. They maintain the complete exemption from civil or disciplinary proceedings, but limit the exemption in criminal proceedings to action taken against the witness.

The Opposition welcomed the introduction of these protections and accept the refinements made today, but it is important that the House realises that these protections fall far short of those enjoyed by Select Committees and leave many unanswered questions. It is also important to realise that because these are statutory protections and not privilege, it would be possible for the Government or an agency to obtain an injunction preventing a witness from appearing before the Committee.

As I have stated, parliamentary privilege covers all the proceedings of a Select Committee, and it is important to realise what that means in practice. It means the evidence presented to a Select Committee is covered by privilege. That is not any document submitted to the Committee, but documents accepted by the Committee as evidence. Privilege also covers all proceedings of the Committee, including advice given by the Clerks to members of the Committee and actions of members while serving on the Committee.

I highlight these areas because it is not at all clear to me what alternative protections are given to the ISC in such situations. I would like to ask the Minister about a hypothetical situation where the ISC receives classified information relating to serious wrongdoing on the part of an element of the security agencies. Let us say, for example, the ISC were anonymously to receive Secret Intelligence Service transcripts indicating an agent had committed torture. I am not saying this has ever happened; I just want the Minister to say what would happen if it were the case.

It is questionable whether the ISC would be able to act on the evidence it received. That would depend on the provisions in clause 2. These documents may be directly related to an investigation the ISC was already undertaking, but that is not the question I want to focus on here: I am asking whether the ISC is even in a position to accept these documents.

Oral Answers to Questions

Debate between Lord Beith and Diana Johnson

Tuesday 4th September 2012 Commons Chamber

[Diana Johnson (Kingston upon Hull North) (Lab)]

8. What recent assessment he has made of the humanitarian situation in Syria.

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

15. What recent assessment he has made of the situation in Syria.