Investigatory Powers Bill

Debate between Lord Murphy of Torfaen and Lord Carlile of Berriew

Wednesday 7th September 2016 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I support my noble friend’s amendment, which he very ably moved. As he said, it is the only amendment recommended by David Anderson QC with regard to his latest report.

The issue of bulk powers is enormously important and this is the first time that the Committee has had an opportunity to discuss the report on the whole question. It was discussed at some length by the Joint Committee, which I was privileged to chair. The committee took both oral and written evidence and finally came to and made 23 conclusions and recommendations on bulk powers in its report to both Houses of Parliament. We asked the Government to give a fuller justification for bulk powers, which they did. We were worried about the need to ensure that Article 8 of the European convention would be complied with. We said that the Investigatory Powers Commissioner should report within two years on proper safeguards around these powers, that a proper code of practice on equipment interference and indeed on bulk personal databases should be established, and that the ISC should look at the issue of bulk personal databases.

I think that the other place took a wise decision in asking the distinguished Mr Anderson to look in enormous detail at bulk powers, and it seems that he has made an overwhelming case for bulk interception, bulk acquisition and bulk personal databases. The case for bulk equipment interference was less strong, but nevertheless still there. As I say, the operational case for bulk powers was impressive and the report sets out the need for these powers to deal with terrorists, child abuse, cyberattacks on companies, rescuing hostages in Afghanistan and organised crime. What particularly impressed me is the importance of speed in these operations and of the powers to deal with all these problems being used quickly to ensure that proper information can be given to the appropriate agencies.

Mr Anderson inevitably looked at the alternatives to bulk powers, but said that they,

“would often be less effective, more dangerous, more resource-intensive, more intrusive or slower”.

Having said all that, there still needs to be a proper regime of safeguards if Parliament finally agrees with the Government about the bulk powers provided for in the Bill. We should look at those proper safeguards. Clearly the use of both a judge and the Secretary of State is important. I believe too that the Intelligence and Security Committee of Parliament should look very carefully indeed at the use of bulk powers in the months and years ahead.

Finally, my noble friend referred specifically to the single recommendation for the setting up of a technical advisory panel. It is worth reflecting on the fact that in his report, David Anderson said that the panel would deal not only with technological changes but with how MI5, MI6 and GCHQ could reduce the privacy footprint of their activities. That is why I support the recommendations and the conclusions of the Anderson report and I urge the Government to ensure that in implementing it there are proper safeguards as we go forward in these hugely changeable technological times.

[Lord Carlile of Berriew (LD)]

My Lords, other noble Lords have taken the opportunity in addressing this amendment to make some general comments about David Anderson’s excellent report on bulk powers, so I shall do the same in what I hope will be just a few words. In my view, Mr Anderson has made a powerful case for the need for the bulk powers that he describes. They are very much a part of the fight against terrorism. Similar powers have been used well by the security services and authorities in this country and—touching wood and crossing fingers—that is the reason why we have not experienced, for example, what happened in Nice. I agree entirely with what has just been said by the noble Lord, Lord Murphy, who as we know has considerable experience in dealing with and judging these matters, and I share his view that the safeguards should be as strong in every way as has been recommended by Mr Anderson.

Turning to the question of the technology advisory panel, I have complete sympathy with Mr Anderson’s menu but not necessarily with the recipe. With respect to him, I think that we might do rather better than his suggestion of the way in which a technology advisory panel is established. I suspect that he would be the first to agree that what he is concerned with is not the form of the panel, nor to whom it is accountable, but the substance: what it does and what it sets out to achieve.

My suggestion to the Government is that we could broaden the technology advisory panel’s scope and make it more acceptably accountable. The suggestion by Mr Anderson is an unusual one, in that the panel should be appointed by, and be accountable and report directly to, the Investigatory Powers Commissioner. That suggests that it has a pretty narrow scope. In my view—obviously, I use my now rather historical experience as the previous Independent Reviewer of Terrorism Legislation—a technology advisory panel would indeed be valuable, but not just to the Investigatory Powers Commissioner. My suggestion is therefore that this panel should exist but that it should be appointed by the Secretary of State and, through them, should be accountable to Parliament, at least in a general sense.

The advice given by the technology advisory panel would of course be available to the Investigatory Powers Commissioner, but he is not the only commissioner. It would also be available, if appointed by the Secretary of State and accountable in that normal way, to parliamentary committees and other commissioners, to which it could give advice. Indeed, my hope is that a technology advisory panel, or something with a similar name and that intent, should, like the Independent Reviewer of Terrorism Legislation, publish not only annual reports but tasked reports on specific issues raised —of which the Anderson report we are discussing is a very good example.

The technology advisory panel, if appointed on a broader basis with that greater accountability, would help considerably without placing undue burdens on the security services, the police or GCHQ. Indeed, they, too, would be able to turn to it if they wished to; it would be a matter for their chiefs. We have some experience present in this House as we speak.

I hope that we can adopt the spirit of this part of Mr Anderson’s remarkable report, but perhaps look at ways of making it even more useful than he had in mind, and with forms of accountability that we in this House and the other place understand more readily.