Investigatory Powers

Lord Blair of Boughton Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord Blair of Boughton (CB)]

My Lords, I was not present yesterday because I was taking part in a number of the commemorative events for 7/7. The day provided a poignant counterpoint to the debate. Like other speakers, I welcome the debate and warmly welcome the report by David Anderson QC. I welcome his observation of the current laws being in a patched and confused state and I agree with his recommendation of a completely new, comprehensive legal framework. I intend to look most closely at his chapter 9 on law enforcement.

In the last 100 years, there have been only three major technological breakthroughs in law enforcement: fingerprinting; the discovery and exploitation of DNA; and phone and email analysis. They are all vital. Each requires an effective and, as far as is possible, transparent legal framework. In paragraph 9.22, Mr Anderson notes that in 26 recent terrorism prosecutions, of which 17 ended in a conviction, 23 could not have been pursued without access to and analysis of communications data. In 11 cases, the conviction depended on those data. I am not at all surprised.

In paragraph 9.8, Mr Anderson notes that,

“the public would not accept the existence of physical no-go zones in towns and cities”—

for the police, he means—

“so they expect the police to have the capacity, in appropriate cases and when … authorised, to trace any kind of communication”.

I thoroughly agree, as I do with paragraph 9.31, in which Mr Anderson notes the use of the phrase “digital witness” for the first time to indicate that, just as the public expect the police to seek the human witnesses to a crime,

“they would be failing in their duty were they not to seek the digital evidence that relates to a crime or other allegation”.

As many speakers have said, digital is the new normal. The police have to be able to find it. Through the technological changes that Mr Anderson notes in his chapter 4, the use of services such as Skype, which use a system known as Voice over Internet Protocol or VolP, and the increasing private access to encryption, the police are losing that ability as we speak. The digital world is growing dark.

I now turn to one point of detail, which is the law enforcement and CPS request for data retention to last for 12 months. Mr Anderson is on top of his case here, too. At paragraph 9.45, he notes that, first:

“Conspirators become more guarded in their use of communications as the moment of a crime approaches”,

and, secondly, that the major players, rather than the actual operatives, are more likely to be traceable at the beginning of a conspiracy than at the end. They are no fools, my Lords.

I turn to the way forward. Mr Anderson’s report states that its purpose is,

“to inform the public and political debate on these matters, which at its worst can be polarised, intemperate and characterised by technical misunderstandings”.

I could not agree more. I do not often shout at the radio but I did when I heard, during a discussion on the previous data communications Bill, a senior and well-respected Liberal Democrat MP—now, I am afraid, a former Liberal Democrat MP—say that he was against the Bill because it would allow the police to read every email, text and social media exchange of every UK citizen and examine details of which websites they had visited. A moment’s thought would recognise the simple absurdity of that suggestion. Again, Mr Anderson catches it very well in paragraph 10.23, in the chapter dealing with the intelligence agencies, in a quotation from the Intelligence and Security Committee. The report states:

‘“Our Inquiry has shown that the Agencies do not have the legal authority, the resources, the technical capability, or the desire to intercept every communication of British citizens, or of the Internet as a whole: GCHQ are not reading the emails of everyone in the UK’”.

When we finally come to debate whatever legislation emerges from the Government, I hope that we will do so on that understanding, and that whatever appropriate and necessary safeguards are erected are put forward to combat misuse or arbitrary decision-making, not to prevent a mass conspiracy of agents of the state to do something which is simply impossible and implausible.

I will finish with a real story. Noble Lords may remember that on the night Gordon Brown became Prime Minister in June 2007, terrorists packed two cars with explosives, left them in the Haymarket, one outside a nightclub called Tiger Tiger, and the other parked in an area where the responding emergency services would have been likely to assemble. Despite their best efforts, the terrorists failed to set off the bombs. Their next appearance, as far as the public were concerned, was when they crashed a large vehicle into the front of Glasgow Airport. As I understand the case, they were able to do that because of Loch Lomond. The Metropolitan Police monitoring their phones were about 20 minutes behind them when the signals disappeared in the Loch Lomond area, which is notorious for poor signal coverage. The suspects were lost. In that space, they had turned round and they went back to Glasgow. By the time the police were able to reconnect their signals, it was too late. I suggest that this is a metaphor for us to bear in mind—the Loch Lomond effect. If we do not take action and implement David Anderson’s recommendations, that kind of lost capability will become more and more common—not because of signal strengths but because of technological change. Quite simply, as on 7/7, people will die. There is no time to waste.