Investigatory Powers Bill

Lord Rooker Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Rooker (Lab)]

My Lords, listening to the debate as a non-lawyer, I get the impression it is being argued that the legal contribution is supposed to be equal to the ministerial contribution. I reject that utterly. It is the Minister’s job to take the decision. That is where the accountability is at the end of the day—back to Parliament. They are not equal partners in this. The introduction of a judicial role to provide oversight or to ask, “Did you really mean that?” or, “Are you sure you’ve got this quite right?” is not the same as giving equal partnership in the making of decisions; that is not what is intended. Yet the whole thrust of what I have been listening to today is about making them equal. I hope the Government will firmly reject that.

[Lord Lester of Herne Hill (LD)]

My Lords, I had not intended to speak until I had listened to the debate, especially what was said by the noble Lord, Lord Tebbit. During the 50-odd years that I have been at the Bar, one the great developments has been that of public law. When I began at the Bar, there was virtually no judicial interference in or control of ministerial decisions. One of the great developments brought about by judges and judges alone has been the notion that, although Ministers take decisions, they must do so in accordance with the rule of law. Judges are extremely careful to make sure that they do not decide the merits of cases that should be decided by Ministers, but they also say that, although Ministers take decisions, they must do so in accordance with the principles of legal certainty, reasonableness and proportionality. Over the years, a partnership has developed between the judicial branch of government and Ministers and Parliament. I agree with my noble friend Lord Carlile that the principles of judicial review are sufficiently flexible and practical to provide adequate safeguards against abuse. I do not believe that judges in any way usurp the functions of the Executive, nor do I believe that they should. I know of no case in which our judges have done so. For those reasons, I hope I have reassured at least the noble Lord, Lord Tebbit, that there is no undue usurpation of the role of Governments or Ministers, nor is any intended.

--- Later in debate ---

Amendments 50 to 52, 170 to 172, 199, 200, 209, 210, 215 to 217 and 229 to 231 reflect equivalent amendments that we have already discussed in relation to Part 2. They respond to concerns voiced by the Intelligence and Security Committee that the Bill should prohibit a targeted interception warrant being renewed very early in its period of validity. The amendments make it clear that a warrant cannot be renewed more than 30 days before it is due to expire. While we do not foresee any circumstance where a very early renewal application such as that feared by the ISC would be approved by the Secretary of State or judicial commissioner, there is no harm in ensuring on the face of the Bill that such an eventuality cannot take place.

[Lord Rooker]

Can I ask the Minister a question before he finishes? I did not want to interrupt what he was saying about the government amendments, but in reading Amendment 226, do I take it that the judicial commissioner gets involved only after the Prime Minister has given approval? It is not clear, but I am just assuming that has to be the case, so that the Prime Minister has also had oversight of the decision, rather than the Prime Minister coming in after the judicial commissioner has agreed, say, the Home Secretary’s decision.

[Lord Keen of Elie]

The noble Lord is, I believe, entirely correct. The sequence will be that the Secretary of State will approve the warrant, the matter will be brought to the attention of the Prime Minister, who will then address it, and only after that will it go to the judicial commissioner, who will then apply his review process to the determination that has been made.

Investigatory Powers Bill

Lord Rooker Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, I am not going to enter into an argument with my noble friend about the activities of GCHQ, particularly when they have been misdescribed so fully, but I will say one or two things about the merits of the amendments before us, particularly Amendment 6.

I agree with what my noble friend Lord Lester of Herne Hill said about this group of amendments, including Amendment 6, for the reasons he gave. It would be helpful if the noble and learned Lord, Lord Keen, could explain to the Committee the difference between Amendment 6 and the intention of the Government as set out in Clause 2(2)(a). If the intention of the Government is to do what my noble friend Lord Lester described, I respectfully suggest that the adoption of the wording in Amendment 6 would be more useful and more certain and, above all, as my noble friend said, would avoid unnecessary disputes about the meaning of and compliance with Article 8 in the courts.

Unfortunately, I disagree again with my noble friends about Amendment 14. I am not against a Privacy and Civil Liberties Board if the Government wish to create one. Indeed, I would rather support the creation of a board which had an overarching view of privacy and civil liberties. The board that was created in the 2015 Act is most certainly not a Privacy and Civil Liberties Board. It is a board that was intended to have some kind of oversight of interception, surveillance and other matters, and was a construct agreed as a compromise because of the nature of government at that time. I am afraid it is a glass half-full. Therefore, I urge the Government not to adopt that Privacy and Civil Liberties Board.

It is also worth saying that we have come an awfully long way in the protection of the public against unlawful intrusion by the state into their private affairs since the enactment of the Privacy and Civil Liberties Board provision, which has not been brought into force. The safeguards included in this Bill as a result of the work of my successor as independent reviewer, David Anderson, and of the Intelligence and Security Committee and the RUSI panel mean that we have a much fuller raft of protections in the Bill. In my view, they are far more beneficial and provide a great deal more than was ever going to be provided by this form of the Privacy and Civil Liberties Board. I respectfully suggest to Ministers that this amendment is entirely unnecessary.

However, I emphasise that there are genuine concerns about potential breaches of privacy and civil liberties. They are concerns about what the public sector can do and they should also be concerns about what the private sector already does. Any of us who subscribe to online groceries, books, music or other similar consumer opportunities on the internet, as I confess I do—I frequently stream music in my car from my mobile phone—probably do not realise how much we have allowed our privacy to be trespassed upon by the so-called privacy policies of large internet service providers. If we are to have a Privacy and Civil Liberties Board, let us do the whole job, not just a bit of it.

[Lord Rooker (Lab)]

My Lords, I will follow up the noble Lord’s point about what the public sign up to in the private sector—of course, the private sector has lobbied against part of the Bill because it has a vested commercial interest. If you sign up to PayPal, you have signed up to 36,275 words of terms and conditions. Who reads them? “Hamlet” is 30,066 words. If you sign up to Apple iTunes, you are signing up to 19,972 words of conditions; longer than “Macbeth” at 18,110 words. It goes on: Facebook’s has 11,195 words. You tick the box—that is all you do—and give these companies access to your information. These companies would never have been able to start in other societies without the rule of law—we all know that. They can only operate in open, democratic societies. You sign away all kinds of things. We know there was a test at one time when someone changed the terms and conditions to an agreement to give away their firstborn and people ticked the boxes, because they did not read them.

Investigatory Powers Bill

Lord Rooker Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Strasburger (LD)]

My Lords, I, too, welcome the Bill and congratulate the Home Secretary on the good intentions behind it. I have been calling for reform in this area for four years. To start with, I was ridiculed by some Members of this House and patronised by Ministers. But then, in July 2014, the Government finally admitted that RIPA and the other elderly Acts that make up the patchwork of legislation governing this area needed to be replaced by a single new Bill, which is what we have here. But, even with the useful amendments passed by the Commons, as it stands the Bill is very far from fit for purpose, and we in this House have much work to do to knock it into shape.

Two new clauses were added in the other place in response to the ISC’s call for a backbone of privacy to be included in the Bill. But the new clauses do not cut the mustard for the chair of the ISC, who has called for them to be clearer about the right of citizens to privacy. There needs to be much better protection in the Bill, as we have already heard, for privileged communications such as those between lawyers and their clients, journalists and their sources and MPs and their constituents. On warrant authorisation, I have sat through endless evidence and debates on the Joint Scrutiny Committee and I have yet to hear a single convincing reason as to why a Minister needs to be involved in day-to-day police warrantry, as the Bill currently provides.

The next topic is the bulk surveillance powers that indiscriminately collect everyone’s private data. They are currently under review by David Anderson QC. When a similar review was undertaken in the USA, the bulk powers were found to have made no serious contribution to detecting and preventing crime, and were discontinued. We must ask ourselves why the UK should travel in the opposite direction.

The only new power in the Bill, as has already been said, concerns internet connection records, which are highly intrusive, difficult and expensive to implement and of no interest whatever to the security services. They were abandoned in 2014 in Denmark, the only country that has tried to do this before, because they failed to deliver the expected benefits. It is my view that ICRs need to be deleted from the Bill. The request filter appears to be a classic wolf in sheep’s clothing, and it will need careful examination before it can be allowed to remain in the Bill.

Finally, the threat to encryption needs to be removed from the Bill. Strong encryption, as the Government have recognised in this House, is vital to our personal security and the integrity of our finance and commerce sectors. The Government are fond of calling the Bill “world-leading”. That is true in some respects, but not necessarily in ways that we would want to celebrate. If it were enacted unchanged, innocent UK citizens would not be far behind their North Korean and Chinese counterparts in a contest to be the most spied-on population in the world. The powers in the Bill are very broad and very intrusive—more so than any of our democratic allies’ powers

One of the praiseworthy aspects of the Bill is that for the first time it offers Parliament the opportunity to consider five major surveillance powers that have been in use, without Parliament’s knowledge or consent, for many years. It is good that these powers have at last crawled out of their dark cave in the Home Office and into the sunlight of scrutiny, but should we not be asking ourselves how the Home Office could be so contemptuous of Parliament as to believe that it was entitled to create new and highly intrusive surveillance powers without bothering itself with the tiresome niceties of parliamentary democracy? It would be good if the Minister could explain to the House how it came to be that obscure clauses in 30 year-old Acts were used to manufacture these powers and wilfully conceal them from Parliament. Perhaps he could also confirm that there are no other hidden surveillance powers of which Parliament is still unaware.

The lesson we must learn from this disgraceful behaviour over many years is that the Home Office cannot be trusted to comply with the will of Parliament. That means that we must take great care to not leave any further what I call “buffet clauses” or “help-yourself provisions” in the Bill for clever Home Office lawyers to exploit for their own purposes. Your Lordships should know that there are plenty of such loopholes still lurking in the Bill, and we will need to dig them out and deal with them.

It is important to understand the context of the Bill in relation to the various threats to life that we face as a nation. I wonder how many noble Lords know how many people died in the UK in the past decade as a result of terrorism. The answer is that it is far fewer than the 110,000 who died because they were admitted to hospital at the weekend, if you believe the Health Secretary; far fewer than the 95,000 who died in London alone due to air pollution; fewer than the 5,500 who were murdered; fewer than the 1,000 women who were killed by their partners; and even fewer than the 300 people who died accidentally in their bath in the past decade. The number of people who died in the UK in the past decade due to terrorism was in fact three—or perhaps four if you include the murder of Jo Cox MP, which we do not yet know was a terrorist incident.

Of course, we must not forget that each and every one of those deaths was a total tragedy and a continuing nightmare for the friends and families of those victims, but many of us are old enough to remember what it was like in the 1970s, when terrorists took 49 lives in mainland UK, or the 1980s, when it was 307, or even the first decade of this century, when it was 56. My point is that, contrary to what some people assert, the risk of death from terrorism is not as high as it was 30 or 40 years ago and the risk of dying from more mundane causes, even an accident in your bath, is currently—

[Lord Rooker (Lab)]

Perhaps I may ask the noble Lord, therefore, what his estimate is of the number of people who have not been killed due to terrorist activities because of the action of the security services.

[Lord Strasburger]

I have no idea, is the answer to that question.

My point is that, contrary to what some people assert, the risk of death from terrorism is not as high as it was 30 or 40 years ago, so we must take care not to surrender the freedoms that our parents and grandparents fought to protect in the Second World War on the basis of alleged unprecedented threats.

Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015

Lord Rooker Excerpts

Monday 26th October 2015 Lords Chamber

[Lord Fowler]

I leave it to the Leader of the House and the noble Earl who will be winding up to put it in specific words, but I think that not an unfair representation of what she said. We are the unelected House. The other place is the elected one. The measure has already been voted on twice, if not three times in the Commons. We cannot have the unelected House trying to impose its will on £5 billion of savings. I say one thing to the ex-Members of the House of Commons who are here: I do not remember their saying when we were in the House of Commons together, “We must give more financial power over what happens to the House of Lords”. I do not remember at any stage that point being made by anyone in any party on this particular position. I think a certain degree of humility might therefore be in order.

[Lord Rooker (Lab)]

I agree entirely with the point made by the noble Lord. Does this not show, though, that our powers on statutory instruments are far too drastic, as was pointed out in the report on conventions? It would be better if we gave up the power to accept or reject a statutory instrument in exchange for maybe two amendments, which would deal with the point made by the noble Lord, Lord Lawson—we could have tweaked it but we could not have opposed it anyway. There may be a lifeboat in this, if we could get something out of it in the way we deal with secondary legislation and avoid all this in future.

[Lord Fowler]

That is obviously something we can consider for the future, and on first hearing sounds an attractive proposition. However, we are considering what we are doing now and not in the future.

I make a last point. In spite of some of the criticism—no, the attack—now being directed at this House, it is my view that it carries out a very valuable series of functions. The Members I meet here day by day are hard-working, not just on the Floor of the House but in Select Committees. However, we need to recognise one common-sense thing: that as long as this is an appointed House, we must accept the limitations on our powers, particularly in financial matters. To ignore those limitations is not in the interests of Parliament, it is certainly not in the interests of the House of Lords and it is not in the interests of the public. It cannot be justified and that is why I will be voting against these amendments.

Armed Forces: Biofuels

Lord Rooker Excerpts

Monday 31st March 2014 Lords Chamber

[Lord Astor of Hever]

My Lords, I am aware of the concerns about biofuels competing with food production but, as I said in my opening response, the MoD uses biofuels for road transport where EU regulations oblige fuel manufacturers to include them, and only for that.

[Lord Rooker (Lab)]

Does the Minister accept that most innovation in this country relating to fuels and materials starts from the motorsport industry? Have the Armed Forces picked up any tips from that thriving industry?

[Lord Astor of Hever]

My Lords, I am delighted that the noble Lord asked that question. I assure him that we are working very closely with the motorsport industry, which—as the noble Lord knows better than most—is expert in lightweighting and energy-efficient use of fuel. All Formula 1 engines have advanced energy recovery systems that reduce their fuel capacity by 40% and reduce their engine size, too, but must deliver the same power output. Race cars recover and store significantly increased energy from braking and from their turbochargers.