Investigatory Powers

Lord Bishop of Chester Excerpts

Wednesday 8th July 2015 Lords Chamber

[The Lord Bishop of Chester]

My Lords, I stand in some contrast to the galaxy of professional talent which the Minister outlined at the beginning of his speech as I come to speak today. As this is on the first day of the Ashes test match, I can just about recall the days of the Gentlemen and the Players, so I stand before your Lordships in those terms as a gentleman—an amateur—with a view as if from the Clapham omnibus. I gladly endorse the positive comments which have been made about David Anderson’s compelling and comprehensive report. I would like to offer some reflections on two broader topics which he deals with: how we should approach the threats we face and how our understanding of personal privacy relates to wider questions of human life in society.

In trying to understand the nature of the threats we face, and will face, in the 21st century, I go back to the beginning of the 20th century. Then, people generally underestimated the potential existence of threats. It was a time of comparatively naive belief in progress, which was understandable on the back of all that had happened in the Victorian age, but it proved to be grossly overoptimistic. It was also a time when the downside of all that had been achieved in the Victorian age was not appreciated. We stumbled into the First World War unaware that the nature of warfare itself had been changed by the industrialisation of armament production and much greater firepower in weaponry itself. It has often been said that countries and armies tend to prepare to fight the last war again, rather than anticipating what the next war will actually be like. Perhaps the report before us is not quite at its best in addressing the question not of what threats we face today but what threats we might face—indeed are likely to face—in the future.

At the turn of the millennium 15 years ago, there was an understandable hope that the 21st century would not repeat the terrible problems of the 20th century, particularly in the form of its totalitarian disasters. I very much doubt that we will see such a repetition, but I do expect that we will have to face other challenges and threats that are equally, if not more, dangerous. I do not that say that because I do not believe in progress, but precisely because I do believe in a certain progress in human affairs. I will explain why.

I was originally trained as a scientist, and scientists tell us that the world is about 14 billion years old. For about half the time that the universe has existed, there was never any threat of death to anything at all in the whole universe, for the very simple reason that nothing was alive until about 7 billion years passed. Then life emerges, and it can die. It is only when life gets to a certain complexity that you can talk about something being deformed or diseased, or being preyed upon by something else. You have to get to a level of sophistication to have notions of deformation or disease. It is only when you get to animals that can move around their environment with deeper centres of meaning—that is why most of us tend to have animals as pets rather than plants—that you get one species preying on another. You do not get nature red in tooth and claw until animals have evolved.

With human beings, you get the potential for transcendent values to take root—for morality to be reflected on and acted on—through the gift of language and our ability to think about things through language and so forth. However, the downside to that is moral evil. You simply do not get an Adolf Hitler in the animal world. You do not get the equivalent, if you like, to what happened in that terrible incident in Tunisia a week or two ago. The more you develop potentiality in human civilisation, the more you create a certain downside: nuclear power gives you the prospect of cheap fuel but also of nuclear weapons, and so on and so forth. In a sense, I would say religion is an example here. Religious views can be twisted and warped to support violence in the way that they are, not because they are necessarily untrue but because they attempt to push the boundaries of human understanding.

As we go on in the 21st century, the threats will evolve, as the Minister said, and we need to get ahead, as the noble Baroness said just now, of where we are. That is something that the report possibly does not spend as much time on as it might. Just as the Industrial Revolution, for all its wonderful benefits, also transformed war and just as the discovery, as I say, of nuclear fission produced nuclear weapons, so the digital revolution which we are living through is going to produce ever more dangers which we have not yet fully appreciated, in unpredictable ways. As we encounter and have to face the stresses and strains of living in a global village whose population looks certain to exceed 10 billion within this century, we need to be very much on our guard. We simply have no choice in the matter. We have to work on a much more sophisticated look at potential threats as we go along, so that we are not caught off our guard unless it is absolutely unavoidable.

I turn to the issue of privacy, which is so elegantly addressed in Chapter 2 of the report. I am not really in any fundamental disagreement with it but would like to extend the argument a little further. Here and there I thought it was just a little too coloured by the Orwellian critique of 20th-century totalitarianism—Big Brother and all. That is no doubt understandable, but more needs to be said in today’s context. Our privacy and our need for privacy are tied up with our individuality as persons.

Different religions and philosophical traditions have recognised this, as the report notes. That human beings are individual persons uniquely fashioned from the dust of the earth has been central to my own Judaeo-Christian tradition. Essentially, we are not just spiritual souls temporarily detached from that to which we came, inhabiting a body of flesh and blood, and hoping to return to that unity or uniformity from which we derived. Our down-to-earth humanity, which distinguishes us all, is intrinsic to who we are. That is the Judaeo-Christian tradition: we are taken from the dust of the earth. To some degree, historically the human rights tradition derived precisely from this understanding, along with enlightenment influence.

Our sense of personal privacy is tied up with this, although the digital age poses deep questions. The report quotes Mark Zuckerberg, the founder of Facebook, saying that,

“privacy is no longer a social norm”.

I find that extended quotation from Mark Zuckerberg rather chilling. I sometimes hear it said today that a key to a successful marriage is complete honesty and transparency between the partners. I prefer Jane Austen’s older wisdom. Somewhere in Pride and Prejudice she offers the view that,

“honesty is a greatly overrated virtue”.

Privacy is essential to our humanity—but not privacy alone. We are above all also social beings with linguistic and other communication skills beyond other animals. That was brilliantly brought out by David Attenborough in that series, “Life on Earth” when, in the last of the 13 episodes, he looked at human beings simply as a biologist would. He started, I think, with a shot of Trafalgar Square and the animation on people’s faces. Our facial muscles and everything about us are made to communicate much more than they are in apes and chimpanzees.

The report quotes the view that it is our desire for privacy that marks us out from other animals. Arguably, what marks us out is our desire for both privacy and community. The two must be seen together. Mother Teresa of Calcutta used to say the most pernicious form of poverty in the western world was the isolation and loneliness of so many people, especially older people. Parish clergy encounter that all the time in their daily work. In my view, the chapter on privacy needs a bit of counterbalancing lest we set up an unbalanced and in a sense overprivatised view of how human beings best flourish.

If, then, we find ourselves needing to sacrifice elements of our privacy in order to benefit society as a whole, we should not complain too much, provided that the limits set to our privacy are proportionate and genuinely intended to benefit society as a whole. In passing—it is indirectly relevant to the report—I have never seen why there should be any fundamental objection to a national database of DNA, providing its use was restricted to the detection of serious crime. I know that other noble Lords will not necessarily agree with me here but that is the view I have come to, having thought about it carefully. Returning to the report, I support the thrust of its recommendations but suspect that in time they will perhaps emerge as a little too cautious here and there, slightly overconcerned with an overindividualistic notion of privacy. We shall see.

Finally, on this much debated issue of whether there should be judicial or political authorisation of particular interceptions of data, it is a difficult one to call, but I tend to take the view that although there should be judicial involvement it should be an oversight of political decisions, rather than supplanting them. I say that for two reasons. First, a much greater judicial involvement risks compromising the proper standing back and observing role that the judiciary should have. At the end of the day, the role of the judiciary is to be kept clear and distinct from the political process. Notwithstanding the international comparators, that is the view I found myself drawing as I read the report.

Secondly, with the digitally enhanced stresses and strains that the 21st century is likely to bring, in some sense direct parliamentary accountability will be of particular importance. However, it is not a zero-sum game, to use that language. It is both and in some sense rather than either/or. I just hope that the precise balance between the political and judicial can be got right.

I did not find the report entirely convincing. The report is entitled A Question of Trust and rightly says that whatever new arrangements are introduced, they will work only if they establish trust, and that must be right. The danger is formulating laws which are driven by a fear of distrust. Ultimately, trust has to be established on a more positive basis than that.