Investigatory Powers

Lord King of Bridgwater Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord King of Bridgwater (Con)]

My Lords, I am delighted to follow the right reverend Prelate. The word that he emphasised in his closing remarks was “proportionate”, and the question of trust goes to the heart of the debate today, which we will continue to have on these issues as we move forward, as the Minister said.

Before I welcome anything else, I welcome, I hope on behalf of the whole House, the Minister to his position on this. The great thing is that we have some continuity on this issue. The Minister dealt with these issues before. I am thankful we do not have a different Minister coming in and starting all over again. He is very familiar with the background to some of these problems, and I wish him the best possible prospects in dealing with the very important issues that occupy him now and for a considerable amount of time.

I also join in the welcome of the Anderson report and shall say a few words about it. I shall briefly recap where we started this because the Minister knows better than anybody else that we tried to do this once before. We did it against a background of the very clear warnings we had had. The noble Lord, Lord Evans, the successor to the noble Baroness, Lady Manningham-Buller, in the leadership of the Security Service, said that the threat is increasing and our ability to meet it is decreasing. We were very conscious of that at the time, and the then Home Secretary, who is still the Home Secretary, said that there is a serious gap in our capability that continues to grow. At that time, we had an opportunity with the then Counter-Terrorism and Security Bill, on which a number of noble Lords now in their places joined me in tabling amendments which could have filled some of the gaps dealing only with issues of national security and serious crime, because we thought they were dangerous.

We did that against an emotional background about the Charlie Hebdo assassinations in Paris and the terrorist attack in Brussels. We meet again now, having let various months pass, and we have Tunisia and Kuwait and the decapitation in Toulouse or Marseille. It is against that background that we realise just how serious and dangerous the situation is. The report from the Intelligence and Security Committee said that,

“the Islamic State of Iraq and the Levant (ISIL) is exploiting the power of the internet”—

it quotes the new director of GCHQ—

“to ‘create a jihadi threat with near-global reach … There is no doubt that young foreign fighters have learnt and benefited from the leaks of the past two years’”.

That is the balance of the argument about Mr Snowden. The director of GCHQ continues:

“However much [technology companies] may dislike it, they have become the command-and-control networks of choice for terrorists and criminals”.

The Financial Times said:

“‘The combination of ubiquitous social media and these nonstop conflicts is stoking a very different environment for extremism in Europe and the west … all the conditions are right for this big change in what lone wolf attacks are and mean.’

Isis’s skill in information warfare and its use of social media have made a huge difference to the pull of its message. Its physical caliphate itself is, of course, one of the group’s most emotionally resonant concepts. Unlike al-Qaeda, whose leaders led a covert and small network from shadows and caves, Isis has proclaimed its enduring presence as a physical state. Even the most wilful potential recruits for al-Qaeda struggled to find the network. In the case of Isis it is impossible to miss it. As such, for radical young Muslims drawn to extremes, it is much easier to take up the cause”.

It is against that background that I compare this with my experience in dealing with terrorism in Northern Ireland. I have consulted my noble friend Lady Neville-Jones, who is another great authority on this, and it is fair to say that we had a technology advantage—superior technology—at that time. We had some problems for a while in dealing with IEDs and detonation using remote devices; various developments happened that we had to match and counter, but we still had that advantage. However, I am not sure that in the current situation we have the technological advantage we need. Whatever we did, we tried to prevent access to weaponry. No one has asked any question such as, “Isn’t it odd that the chap in Sousse was able to get hold of a gun?”. We know that certain parts of the world are awash with weapons at present. Although I underline the seriousness of the threat that we faced at that time, I and other colleagues who shared that responsibility for countering terrorism and major threats in Northern Ireland never had to deal with suicide bombers. Those changes make for an exceptionally dangerous and difficult situation.

I turn to new technology, which is quite difficult enough for many of us to keep in touch with and comprehend. I found reading the Anderson report a pretty mind-blowing experience. I will not claim that I have read every page of it, either. Still, it is interesting. I do not know how many noble Lords have had the chance to see the Hansard report of the debate in the Commons. One of the interesting contributions was made by a Member of Parliament, James Morris, who said that before he came to the House he had worked in the IT and technology industry for 20 years, and he had seen changes taking place. He warned about the threat:

“It provides opportunities for our enemies—for countries operating and wanting to develop cyber-attacks against our infrastructure; it enables terror groups to communicate below the radar in encrypted chatrooms on the dark web; and it allows networks to develop which are difficult to detect and to analyse”.—[Official Report, Commons, 25/7/15; col. 1116.]

That is the challenge that the comprehensive and impressive Anderson report brings out very clearly. One particular paragraph caught my eye, and I commend it to the House: paragraph 4.13 talks about the capacity of cables for the carrying of data. It is an illustration of the explosion in the amount of data that exist in the world at present, and I thought that he brought that point out very well.

Where I really started to lose it was where we got into the “internet of things”. The fastest-growing category is wearable technology. One aspect of it that I think some of us can comprehend is body cameras, which are being trialled by the police. I was interested to see that not only are we moving on to the development of wearable technology but the next move will be either implantable, embeddable or even ingestible. That is part of the Anderson report. At that stage, I thought that it really is getting to a stage of development where, as Mr Anderson rightly described it, we are in “a technology arms race”.

There is a real danger with the problems of encryption, particularly the problems of other countries being involved, and the problems of the localisation of data. I think that both Russia and China are now seeking to introduce legislation to prevent access to their data. Much of those data pass through those countries—data that we ought to have access to, and maybe British data, which raises very serious problems.

We will move forward through the stages that the Minister has set out—I will not begin to go into any more details on the Anderson report. Obviously, however, one of the key issues, which the right reverend Prelate also dealt with, is the question of who will sign the warrants. The Anderson report obviously strongly recommends a judicial approach, while the ISC has come out in favour of maintaining the present situation, as the Minister said. There is a distinction; the noble Lord, Lord Reid, intervened on this with the Minister when this matter was raised in the House earlier. Terrorism, security and certain other issues are best covered by the Secretary of State, answerable to Parliament—whichever Secretary of State it is—and much of the crime area could well be covered by the judges.

However, one of the figures that hit me between the eyes was the statement in the Anderson report that the Home Secretary in 2014 signed 2,345 warrants. One wonders how she manages to do her day job as well as that. I do not know what number of warrants the noble Lord, Lord Reid, used to pass over his desk, but that certainly seemed a terrific challenge. Of course, security, terrorism and crime issues, as well as crime, drugs, child sexual exploitation and fraud—the sort of issues for which warrants may be needed or access to data may be required—might be dealt with under an alternative arrangement.

On the basic issue of Mr Anderson’s report, he talks about the balance of liberty and security, which we have all talked about as well. Obviously, I have emphasised the challenges we face, such as the importance of ensuring that our agencies and security forces have the resources and capabilities to protect the public, but we must still respect the right of the individual to privacy as far as we can, making sure that this is proportionate, as the right reverend Prelate said.

Mr Anderson refers to affirming the primacy of communications and says that the law should be in “non-technical language”, and that he wants to,

“take a system characterised by confusion, suspicion and incessant legal challenge, and transform it into a world-class framework for the regulation of strong and vital powers”.

I add the point that the importance of having world-class legislation is that in many areas we depend on international co-operation, and if we have world-class legislation that will be acceptable in other countries as well.. We then have to sustain this into the future. Mr Anderson, having described all the technology, makes a cheering remark in his report, pointing out that it is almost immediately out of date. We therefore have to see how we can have legislation that will meet what will be the galloping pace of change. Some of the most interesting information in the Anderson report shows how far we have come in about 10 or 15 years from a situation in which a number of social media platforms did not exist—they were of no significance at all. When I was in Northern Ireland there were no emails, and no internet. As we know, the internet is only 25 years old. Having had that speed of development, I feel that it is likely only to increase.

My only criticism of the Government’s position is this. We all know that there is a serious gap in our defences. We also know that there is a very serious threat of a scale and type that we have not faced for a very long time. Our duty in this House of Parliament is to protect our people, and we tried to take an emergency step in the previous Parliament to meet that situation. The position taken by the Government and the Opposition at that time was to say, “We mustn’t do that because, although we’ve had the ISC report, we must wait for the Anderson report”. Having seen the size of the Anderson report, I can well understand why the Minister did not like to say to Mr Anderson, “Don’t bother to finish it because we’ve already settled the matter”.

We now have the Anderson report, which is excellent. It has been very well received but the Government have said that we are now going to have more pre-legislative scrutiny. My noble friend Lord Blencathra did an excellent job of pre-legislative scrutiny in the Joint Committee. As the Minister said, a number of the points raised by my noble friend and his committee at that time will be met in the proposals that will be put forward and they have been covered by Mr Anderson. I think that there is a need for a very full debate and discussion and then a need to bring forward the Bill. Let us have a very full Committee stage with ample time for consideration and then let us get on with it; otherwise, as I understand it, the necessary powers will not be in place until some time in 2016, if not towards the end of 2016. All that time will be spent while there is a gap in our defences and the threat that we know exists gets greater all the time. Can we not get on with it?

--- Later in debate ---

[Lord Bates]

Let me begin by echoing the words of the noble Lord, Lord Rosser, in his closing tribute to the men and women of our security services and the work they do day in, day out, often at significant risk to themselves, to prevent the types of atrocity that we have seen all too often around the world and on our streets here in the United Kingdom.

This debate was styled as a take-note debate, in the terms that we use in this House. I do not propose to respond to each of the points made, because that was not the purpose of the debate. The purpose was simply for noble Lords to bring their incredible experience, knowledge and insight to this forum, so that we could draw upon their comments, observations and questions as we begin the process of preparing a draft Bill for consideration here. Effectively, as I saw it, the debate moved between three stages. The first stage was to recognise the nature of the threat. That was brought into very sharp focus by frequent references to David Anderson’s report. I do not think I have ever previously responded to a debate in which the report that formed the subject of it has so frequently been the basis of the contributions to it. The noble Lord, Lord Butler of Brockwell, will be impressed from an academic standpoint by the number of citations of the report, which shows that it is an incredibly thorough piece of work. I pay tribute to Her Majesty’s Opposition for encouraging us to undertake it. It was absolutely right that we did.

The report outlined the threat before us and identified a determined and ruthless new emerging threat. We found that in the evidence and report by the Intelligence and Security Committee into the death of Fusilier Lee Rigby. The noble Baroness, Lady Manningham-Buller, gave us some insights into the sophistication of the technology and urged us to be agile in our responses to it. The noble Lord, Lord Blair, gave his reflections, in particular on those horrific attacks and planned attacks. The chilling thought of the Loch Lomond effect struck us significantly.

If the threat is there, the second question is: what are we to do about it? That was a very interesting debate. The contributions on law enforcement from the noble Lord, Lord Paddick, and others were very important—that we talk about how we track this. I was conscious of the reference in the report by the former director of GCHQ, Sir Iain Lobban, who said in his valedictory speech that we must “enter the labyrinth”. As my noble friend Lord Blencathra reminded us, that labyrinth is getting more and more impenetrable. We were distinctly helped by my noble friend Lady Neville-Jones, who comes to this from a security perspective and is doing valuable work in informing our response to the cyberthreat facing not only commerce, but society. That complexity is a very important issue.

Let me respond to the contributors who asked whether we are having conversations with internet service providers and communications service providers. That is crucial—if noble Lords go to the appendix of the Anderson report, they will see the list of communications service providers that he interviewed. This is an ongoing process: at the Home Office we regularly meet with communications service providers, both domestically and internationally. Indeed, a senior Home Office official is in the US today holding meetings with companies. We also have my noble friend Lady Shields, who is from the world of social media. She is now Minister with responsibility for internet security.

We also had the very helpful work in 2014 of Sir Nigel Sheinwald, the Prime Minister’s special envoy on intelligence and law enforcement data sharing. His role was created to work with foreign Governments—precisely the point that was asked—and with communications service providers to provide access to data across different jurisdictions for intelligence and law enforcement purposes. Since Sir Nigel’s appointment the Government have expanded their dialogue with the companies but, despite some progress and co-operation, that remains incomplete. We all agree that we need to work on longer-term solutions. The noble Lord, Lord Butler, asked whether I had an update on Sir Nigel’s report, which was presented to the Prime Minister. As we set out in July 2014 when the position was announced, the role of the special envoy has been to conduct discussions and negotiations on data sharing. Any detailed advice relating to his work as a government special envoy remains internal civil service policy advice, helping Ministers to consider a full range of options. However, the Cabinet Office published a summary of his work on its website on 25 June.

The third question is: if the threat is real and serious as virtually all noble Lords have acknowledged it is, and if our police and security services need more powers, how do we ensure that we carry public trust with us? These points were focused on by the noble Lords, Lord Strasburger, Lord Scriven, Lord Blencathra and Lord Paddick. It must be stressed that there are two elements to this answer. First, there is a plethora of people—in fact, some may say too many—overseeing the work of our security services, including the Interception of Communications Commissioner, the Intelligence Services Commissioner and Surveillance Commissioners. All their reports are available in the Printed Paper Office. There is also the Intelligence and Security Committee of Parliament, the Independent Reviewer of Terrorism Legislation, the Investigatory Powers Tribunal, to which I will come back in just a second, and the courts more generally. The noble and learned Lord, Lord Brown, with his significant experience, clearly outlined the way they would approach these issues and the principles they would apply in so doing. The Information Commissioner also oversees this process.

A number of noble Lords referred to, and asked for comment on, the recent Amnesty International case that came before the Investigatory Powers Tribunal, to which I wish to put a response on the record. The tribunal made it clear in its judgment of 22 June that any interception that occurred was lawful, “necessary and proportionate”. We would caution against drawing conclusions from the tribunal ruling about the target of any such interception. A finding in favour of an individual or organisation does not necessarily mean that they themselves were the target. It could equally mean that they were simply in communication with the target. However, we can neither confirm nor deny specifics relating to this or any other case. I am sure that will not fully satisfy noble Lords, and perhaps plays into the caricature developed by the noble Lord, Lord Strasburger, of what he anticipated we might say. However, the serious point is this: we should be proud of not only our security services but the vast swathe of individuals and organisations who diligently oversee the work carried out by our security services to ensure that it is done correctly.

I was asked by the noble Lord, Lord Rosser, whether I could provide some detail on the actual number of warrants that have been signed. I did have that figure to hand, but perhaps I will write to him setting out how this year’s figure compares with that of previous years.

In conclusion, I again thank all those who have contributed—

[Lord King of Bridgwater]

My noble friend did not answer the point that I raised. I think it is generally widely accepted that we are at risk in this country of terrorist attacks, and that at the moment our defences are not as strong as they could be. We believe that measures in legislation which could come forward would protect the nation from the sort of outrages that we have suffered in the past and would provide a better chance of protecting the country. The course on which the Government are now embarked is to go away and prepare legislation and then submit it for pre-legislative scrutiny by a Joint Committee of both Houses, which will take some time. It seems to me that because of the initiative of the Opposition in initiating the Anderson report, on which I congratulate them, we have the most extensive preparation for this legislation: a report that has been very widely respected on all sides of the House.

The noble Lord, Lord Blencathra, who chaired the previous pre-legislative scrutiny Joint Committee, said that the Anderson report meets all the points that his committee wished to raise. Of course, I understand that there are points that still need discussion. One of them, as we know very well, is whether there should be judicial or ministerial approval. But if we have another Joint Committee, it will rehearse the arguments, which are already very well rehearsed, and it will come back to a decision of Parliament. Parliament will have to decide some of the issues that are outstanding.

The advantage of the course that I am advocating is that unless we really want to go down this very extended route, we could actually have better protection in place for all the citizens of our country sooner if we now go ahead, prepare the Bill—drawing on all the advantages of having the Anderson report available—and then put it to both Houses to decide those issues that, I absolutely accept, remain outstanding; they are a matter of debate, and can be decided by votes of both Houses. I say to my noble friend, who has given an admirable response to the debate so far, that I hope the Government will consider whether we really need to have a further, second pre-legislative scrutiny committee, which will take time and leave the country at risk for longer than I believe is necessary.

[Lord Bates]

My noble friend speaks with great authority and experience. He is right to urge us to move as quickly as we can, given the statements that he quoted from the Home Secretary, which were made before the last election under the previous Government, about every day that goes by without these powers. A process has been set out here and the Prime Minister and the Home Secretary have been very clear that because of the importance of taking people with us and, as far as possible, being able to bring this forward in a cross-party way—not just cross-party, but of course including the Cross-Benchers in this House—we ought to be seen to be going through a very thorough process. That involves basing it on the Intelligence and Security Committee, the Anderson report, the RUSI report which is to come and the debates that have been scheduled ahead of time in both Houses before the Recess. There will then be a period to reflect on that over the Recess and the Government can then come forward with a draft Bill that I hope, because it has been deliberated over, will not be subject to the type of criticism that the noble Lord, Lord Blencathra, levelled at the previous Bill. On the basis of that, one might therefore hope or think that the period of time for pre-legislative scrutiny might be shortened, and that the period of time for scrutiny through the House might be quicker than it otherwise would have been had it not been for all the evidence, reports and consideration that have gone before.

I know my noble friend will not accept that answer fully but I hope he will accept that it is an answer and a position which we have taken with great care and consideration to ensure that, as we progress down this path towards reform and to new legislation, which will go much beyond RIPA’s sunset at the end of 2016, we will carry people with us, that it will be better legislation as a result, and that we will progress down that road in a position of trust between those who carry out those duties and the citizens of this country—