Investigatory Powers Bill

Lord Hennessy of Nympsfield Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Hennessy of Nympsfield (CB)]

My Lords, I declare my membership of the Royal United Services Institute’s independent surveillance review, whose report A Democratic Licence to Operate was published last year. Open societies possess huge, enduring and, we hope, ultimately prevailing advantages over closed ones, yet open societies throw up special torments of their own—what one might call duelling desirables. This Bill lies classically in that territory, because it attempts to reconcile two duties to protect; the protection of our people from those who wish them and their institutions harm, and the protection of our people against state power, which involves a loss of liberty that trenches on the private conduct of their lives. John Stuart Mill caught this perpetual dilemma in the mid-19th century in his celebrated work On Liberty, when he wrote,

“the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection”.

More recently, my colleague on the RUSI review, Sir David Omand, said:

“Without security you cannot protect human rights”,

a point made by other noble Lords during the course of this debate.

There is a third element; the technical race between the protectors and the would-be harmers, the collection of pre-emptive intelligence which, in its modern form, has been with us since the early months of the Great War. I have with me a copy of the single-page, handwritten minute penned by the First Lord of the Admiralty, Winston Churchill, and countersigned by Jackie Fisher, the First Sea Lord, on 8 November 1914, instructing that all the decoded signals intercepts of the Imperial German Navy, current and past, should be kept in a locked box, in Churchill’s words,

“in order to penetrate the German mind”.

To this day, GCHQ regards this little slip of paper as its founding document, which led, in both world wars, to a British signals intelligence capacity on an industrial scale which was crucial to the outcomes to both conflicts.

I am, of course, aware that total wars create different conditions from the spectrum of state and the multiplicity of non-state threats we face today in our own age of anxiety. The RUSI panel was acutely aware of this and of the prospect of leaping technologies, to which I referred a moment ago. As a result, we came up with 10 tests, some of which the noble Lord, Lord Paddick, mentioned earlier, which should be applied in open societies whenever the John Stuart Mill dilemma presents itself anew. I deeply hope that the Minister will be able to accept those 10 tests this evening on behalf of the Government. They are, very briefly, as follows. The first is:

“Rule of law: All intrusion into privacy must be in accordance with law through processes that can be meaningfully assessed against clear and open legislation, and only for purposes laid down by law”.

That is our business this evening. Secondly, there is necessity and, thirdly, proportionality. Fourthly:

“Restraint: It should never become routine for the state to intrude into the lives”,

of the Queen’s subjects. The state must always and everywhere be a reluctant intruder. Fifthly, there must be effective oversight, with arrangements for the independent investigation of complaints. Sixthly, there must be a “recognition of necessary secrecy”. The secret state should be treated as a needed protector of the open society:

“It cannot be more than minimally transparent”,

to be effective, but it must be accountable to Parliament. Seventhly, the necessary secrecy, however, must be kept to the absolute minimum. Eighthly, transparency: how the law applies to the citizen must be clear and comprehensible. Ninthly, this presupposes legislative clarity, which, of course, is part of our job. Finally, UK Government policy on intrusion should as far as possible be “harmonised” with that of other “like-minded” open societies.

In my judgment, the Bill genuinely seeks to meet those tests, but I shall be listening very carefully to the arguments, especially on legal professional privilege. I take very seriously what other noble Lords have said, and what the Law Society and other liberty and justice-related bodies have said about the crucial ability of individuals to consult their legal advisers in confidence. As a former journalist, I shall take an interest in the degree to which journalists and the confidentiality of their sources are drawn into the Bill.

When I was operational, in the old days of the very old technology—just telephone tapping and a leak inquiry—I used to quite enjoy it, as long as I knew there was a leak inquiry, which I often did. I would plug the phone in on Whit Mondays to “Dial-A-Recipe” or the Test score, just to throw them off the scent. It was a trivial, adolescent thing to do, but those were the days of simplicity, when such things were possible.

The secret parts of the state and the law enforcement agencies wish for and need a new licence to operate in a world of shifting perils and surging technologies. Let us craft one that reconciles as closely as any Parliament can the two duties to protect with which an open society must always wrestle, because only Parliament can set the dials for the work of our secret services.