Investigatory Powers Bill

Debate between Lord Garnier and Nusrat Ghani

Tuesday 15th March 2016 Commons Chamber

[Nusrat Ghani (Wealden) (Con)]

Does my right hon. and learned Friend agree that to help our police and security services to transfer what they do in the physical world, they need the powers to do that work in the digital world, and that without the Bill we are asking our security services to do their job with one hand tied behind their back?

[Sir Edward Garnier]

I agree with that.

I do not have time in this Second Reading debate to do more than state that, as a matter of principle, I wholeheartedly support the aims and policy behind the Bill. The proposals to enable the state to intercept others’ communications or to interfere with equipment in a way that would, without this legislation or the laws it replaces, be unlawful, are sensible. The requirement for the Secretary of State to issue warrants that have to be approved by judicial commissioners, and other protections against the state’s misbehaviour with regard to the collection and retention of communications data, are rightly in the Bill. The ability to acquire bulk data is necessary. The checks and balances governing the police, and the internal supervision arrangements referred to in schedule 4, are right, subject to further consideration of the seniority of the officers involved. All that and more is justified and defensible in the interests of protecting us from harm.

That said, there is no room for complacency or any suggestion that the Bill is the perfect answer to a difficult set of problems, which are most obviously defined as the border between public protection and freedom on the one hand, and excessive state power on the other. In my time as a Law Officer I had, from time to time, to deal with the security services and the law enforcement agencies. I hope that I will not be accused of undue naiveté, but my experience of them in government was that they were scrupulous to obey the will of Parliament and the law. I was impressed by the fact that, from the top down, there was a genuine desire to do only what was right and to seek clarification where the law was complicated or capable of being misconstrued, so that they did not stray across the line between what was possible and what was lawful.

Based on my experience, I am sure that those entrusted with the type of work described in the Bill will conduct themselves within the law and that, if errors are made, it will not be for want of trying to keep on the right side of the law. The number of intercepts warranted every year by a Secretary of State may not be large in comparison with the billions of emails sent, mobile telephone calls made and internet searches carried out every year. It may be—I am guessing—that the three Secretaries of State will collectively issue fewer than 5,000 each year. If the law is to be obeyed, however, every warrant must be considered by the Secretary of State or a Scottish Government Minister. The Foreign Secretary, the Defence Secretary and the Home Secretary will have to give every application for a warrant from an intercepting authority the time and the close attention that it deserves.

Of course, I believe what the Home Secretary said in her response to the intervention from my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), and no doubt she will never take shortcuts. The current holders of those offices are hard-working Ministers, who are capable of reading a closely argued and complicated brief late at night after a long day of other work in their Departments, in Parliament or travelling here or overseas. Even if I have overestimated the number of applications for warrants that they will receive each year, I am reasonably sure that they will consider several every day. That is much reinforced by what my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) had to say a moment or so ago.

This should not be a tick-box exercise. Although I accept that some applications will be more straightforward than others, I do not expect that even in the easier cases, it will be a question of skim-reading the application and initialling it. Each application must be fully argued on paper on its own facts and considered personally by the Secretary of State. I hope that no submission to the Secretary of State will merely recite the wording of clauses 17 and 18; I hope that all submissions will go into detail about why the warrant is necessary, not least because they will have to be carefully reviewed by a judicial commissioner. That is all the truer in urgent cases when a judicial review follows the issuing of the warrant, or in cases involving legal privilege under clause 25.

My concerns about the practicalities of all this are added to when one considers this point, which was also made by my right hon. and learned Friend. Authorisations under part 3 of the Bill are likely to be numbered in the many hundreds of thousands every year and will be made by what, to my eye, look like middle-ranking police officers and other officials. As one can see from schedule 4, those officials are inspectors and superintendents, majors and lieutenant colonels, and other civil servants of that rank. As I learned yesterday, some of them will be part-timers. I need to be assured that the necessity or expedience of every case will not outweigh the need for formality and proper scrutiny of every such application. If we are to have complete confidence in the vetting system, I urge Ministers on the Front Bench and the rest of the Government to think very carefully about those aspects of the process.

Finally, clause 222 requires the Secretary of State to prepare a report on the operation of the Act five and a half years after the Bill has been passed. In any view, that is too long. I suggest that it should be done after two years. If the Government refuse to reduce the period, I hope that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and the ISC—as well as Mr David Anderson, the independent reviewer, who produced an invaluable report last summer—will want to do so themselves.