Investigatory Powers

Lord Scriven Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord Scriven (LD)]

My Lords, I note that I was not mentioned by the Minister at the beginning because I am not an expert on this matter. However, I am a citizen of this country and I want a safe country, but I also want to live in a country where my privacy and civil liberties are balanced with that security. That is vital. I do not think that anyone would disagree with the tone of the debate that we have had today but the crux of the matter is to ask how we can achieve that balance in the most effective way. That is why talking about technology and the balance between security and civil liberties is really important. When we discuss these issues it is also important to ask what type of country we want to live in and how we want our country to be perceived. Those questions are at the front of my mind when I address this matter. As I said, I am not a technical expert but a citizen asking those questions.

One of the key issues in getting the right balance between security and civil liberties and privacy is to judge not just what we do to the civil liberties of those who wish to harm us, but how we protect the civil liberties of 99% of the population who are law-abiding and wish to live in a secure country. The Anderson report talks about why we need to make changes, and we need to think very carefully about that balance. In particular, the report says that in its present form RIPA 2000 is undemocratic, unnecessary and, in the long term, intolerable. If that is the case, we need to think very carefully about what kind of country we want to live in, what kind of country we want to be perceived as and how we balance security with civil liberties.

That is really important because some people talk about this issue as being about—I would not use these words but they have been used in the other place by the Prime Minister—protecting our values. Is it part of our values in the face of this type of terrorism to say that everyone is under suspicion? That is the signal given out by blanket and mass surveillance. Is it part of our values to say that we are not such a developed country that we can be smart and effective in targeting that surveillance and getting round some of the technological problems by working internationally? The kind of country that I want to live in is one which is smart and effective, and which does not say that, because of this threat, we are all potential suspects. This has to be targeted and proportionate: the two words that everybody—whether expert or, like me, a layperson—should keep at the forefront of their mind.

This debate is not understood by the vast majority of parliamentarians or the public—it is complex. I see myself as being relatively young in this place. I go on Twitter, Facebook, Periscope and WhatsApp. However, I do not necessarily always understand the technology behind them. Let us place this in a way that the public would understand and think about what the response would be. To deal with this threat, a copy of every letter and package sent via the Royal Mail would have to be retained. Every address would have to be retained. Further, at the stroke of the Home Secretary’s pen, everything in a particular Royal Mail sorting office would be opened. That is the paper equivalent of what this says. The public would understand that, but would they see it as targeted and proportionate to the challenge that we face? I think probably not. I asked the general public that question in a number of ways, and they do not see that as targeted and proportionate. On some of these issues we are looking for a needle in a haystack, and we are making the haystack bigger to find that particular needle. By trying to deal with this technology by widening the net, are we making it harder to target the people we so rightly need to target?

I believe that politicians and parliamentarians need to understand this a little better. Parliament must assert its function to set clear limits on the use of intrusive powers and must prohibit the use of them on a blanket and mass scale, because I do not believe that such use balances security, privacy and civil liberties in a way that most people would want and, to use the Prime Minister’s words, that would protect our values. It seems to me that we are in a rather strange fight, as some people call it, when to protect our values we undermine the very things that we see as important in a liberal democracy.

Be under no illusion—I am not making this up:

“The inadequacy of our surveillance laws and the need for both online and offline reform has been laid bare in some of the rare instances in which surveillance has come to light”.

For example, as my noble friend has already said:

“In recent years, the Metropolitan Police circumvented PACE safeguards to access the phone records of journalists, spied on a grieving Baroness Lawrence and her family and infiltrated social and environmental justice groups to the extent that women were tricked into serious and long-term romantic relationships—one even giving birth to a child with an undercover officer”.

We already have powers that are circumvented and we need to think very carefully about whether we are using, offline and online, targeted and proportionate responses to the threats that we face.

I turn to the issue of whether judicial process is needed. We are an outlier in the “Five Eyes” countries: the other four all use judicial signature for the warrant. All the issues that have been raised in the House, those four countries seem able to deal with. Importantly, the international communication service providers, who hold offshore a lot of the data and intelligence we are going to target, have made it very clear that they would have more confidence and be more likely to work with us if it was a judge-signed warrant rather than a political warrant. So we should listen to what the experts and the people who are controlling those data offshore are saying and work with them. When was the last time that the Minister or his officials sat down with the communication service providers to get their input on how we move this forward? When was the last time that the Minister sat down with an international body, in the US or in Ireland, where a lot of such data are held, to work out whether a judge’s or the Home Secretary’s signature would be more likely to get us to the data held offshore that we need on a targeted basis? We need to think about this very carefully. What might seem to us to be a wide net and to be sensible might be seen not to work when we start talking to the people with whom we need to co-operate on an international level, and we may be making ourselves less safe.

I want to come on to some of the practicalities, be it about subscriber data, blanket retention of web logs and third-party data or the creation of request filters. As I have already said, the people whom we need to talk to are the communication services providers. That is really important. I, as just an ordinary boy from Sheffield, have spoken to them and I get a greater understanding of what is needed to protect not only my civil liberties but the security of the country that I love and want to see safe.

If we understand those technological developments, we will understand the issues relating to encryption that the noble Lord, Lord King, mentioned. We can have this mass surveillance; we can have the net spread widely; but if the people abroad are not going to work with us on the encryption key, then it is a waste of time keeping it. It is like going back to the Royal Mail’s suggestion. It is like saying, “You can have a copy of the envelope. You can’t see what’s in the envelope because we’ve got nothing to open this new material that the envelope’s made of”. That is the equivalent. So we need to work on an international basis. We are looking and focusing in the wrong direction. This is about working internationally with Governments and with the providers. We need to think about encryption and about how we use targeted third-party data when they are needed.

Therefore, I suggest that we need to be very clear. We need to look particularly at mutual legal assistance treaties—MLATs. What work are the Home Office or other government departments doing to tackle this issue through stronger and smarter MLATs on encryption and data sharing internationally? If we work with Governments or providers internationally who want to help us with this, they will say that they will do it only if we are targeted and smarter. They will say, “We will only do it if a judge is brought in”. So let us start talking to our international colleagues who want to work with us and see what needs to be part of such MLATs and where we need to focus.

I agree that this is not a zero-sum game: this is not about wanting civil liberties over security, or security over civil liberties. As I said, I want my privacy and my civil liberties, but I also want the country that I live in to be safe. I understand that, to achieve that, we may need to improve or strengthen some of our security capabilities. But we will not do that by getting it wrong by looking in the wrong place or doing the wrong thing. Nor do we get it right by undermining the very values that we are fighting for for our security—the privacy and civil liberties that actually make us a strong nation, not a weak one.