Investigatory Powers

Lord Strasburger Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord Strasburger (LD)]

My Lords, on behalf of those who sit on these Benches, I start by paying tribute to the dedicated and highly successful performance of the police and the agencies in keeping the people of this country safe from terrorism. While each successful attack is a severe personal tragedy for those involved and their families, we should reflect with some satisfaction on the fact that half way through the current decade, there have so far been only two fatalities in the UK due to terrorism. This compares very favourably with the last 40 years, when the death rate from terrorism was much higher. We know that, as in the past, there is currently no shortage of terrorist threats, so the low level of fatalities in the last five years can be explained only by the strong performance of the agencies and the police in detecting and preventing attacks before they happen. That is not to say that we can be complacent; in fact, we have to accept that whatever we do, however much money we spend and however much freedom and privacy we give up, some of these crimes will still happen. There is no such thing as 100% security.

We also need to realise that the closer we get to that unachievable 100% goal, the more expensive it is, in cash and in lost privacy, to achieve a very modest further improvement in safety. The law of diminishing returns comes into play. We must bear in mind the possibility of gaining at best only a marginal improvement in safety whenever we consider forfeiting any of our hard-won freedoms and way of life, or significantly increasing expenditure.

For years, everyone who has taken an interest in these matters has been able to see that the six Acts of Parliament that in some way cover surveillance in this country are an incoherent mess, out of date and not fit for purpose. The only exceptions—the only advocates for the status quo—have been in the Home Office. They have repeatedly asserted to us that RIPA is close to perfect, that Britain has the best oversight of its intelligence agencies in the world and that all surveillance is carried out within the law. We now know that none of these claims is true. The statutory regime is in fact deeply flawed, oversight has not been up to the job and multiple cases of lawbreaking have come to light, which may be just the tip of an iceberg. As a Conservative former member of the ISC said last week, there is a,

“suspicion that our security agencies are, on occasion, able to arbitrage the plethora of statutes to choose the easiest route in seeking authorisation”,—[Official Report, Commons, 25/6/15; col. 1099.]

for surveillance. I draw the House’s attention to the recent example of the Metropolitan Police using RIPA to evade the requirement for judicial authorisation under PACE when seeking the identity of journalists’ sources during the “plebgate” affair. Under heavy pressure from the former Deputy Prime Minister during the coalition negotiations over DRIPA, the Home Office made several important concessions, one of which was setting up David Anderson’s review. Mr Anderson has produced an excellent report—I think we all agree on that—which is based on facts rather than rhetoric and which opens the door to the informed public debate that is so badly needed.

Whatever your views on the behaviour of Edward Snowden, there is no denying that, without his revelations, none of this long-overdue public conversation would be happening. If it were not for Snowden, the Patriot Act in America would have been renewed again on the nod. The Freedom Act would not have been passed by senators, who joined forces across party lines to curtail for the first time in 40 years the ability of the US Government to engage in the bulk collection of their citizens’ data. Here in the UK we would be none the wiser about the mass indiscriminate collection of our data without any explicit consent from Parliament. We would not know that our computers and phones are being hacked by the agencies without independent approval or oversight. The Home Office would still be pretending that all was well and Mr Anderson would not have been asked to carry out his review.

The forthcoming investigatory powers Bill presents Parliament with a huge opportunity to get these important issues resolved at long last. We supported the Home Secretary when she said in the other place that she wants to take the new Bill forward on a cross-party basis. But, to make that possible, and to achieve the right balance between security and privacy, there will have to be a sea change in the Home Office’s attitude. For as long as I can remember, its response to anyone with the temerity to query what is going on with surveillance has been patronising in the extreme. It has been a mixture of the defensive “we neither confirm nor deny” or “we never discuss security matters”, the misleading “everything’s fine”, and the dismissive “don’t worry about it, leave it to us”—all hardly designed to engender the public’s trust and confidence.

Only four months ago, the Government did it again by slipping through a new equipment interference code of practice to make it legal for them to hack private computers and phones. In my view, hacking enables the state to conduct the most comprehensive form of surveillance imaginable. My question to the Minister is to invite him to tell the House, why did the Government fail to draw Parliament’s attention to—let alone have any debate about—this hugely intrusive hacking power that they awarded themselves earlier in the year? The jury is out on Mrs May’s declared intention to achieve the right balance between security and privacy. That balance is vital to the success of the Bill’s passage through both Houses of Parliament and in gaining the trust of the people.

Mr Anderson reports a complete lack of detailed operational cases being presented to him for many of the proposed increased surveillance powers. He says that Parliament must rigorously assess and test any assertions about improved safety as a result of the new powers and expenditure being sought, in order to establish their lawfulness, likely effectiveness and true cost. That process must start during the promised pre-legislative scrutiny.

Turning to a few points in Mr Anderson’s report, I shall start, as the Minister did, with the proposal for judicial warrants. Mr Anderson does not put that forward as an optional extra; for him, it is a fundamental element of his proposals and was the easiest decision he had to make. He mentions judicial warrantry in about 50 of his 124 recommendations. For example, when suggesting that bulk collection might continue, he makes it conditional—in bold letters—on judicial authorisation by a new independent surveillance and intelligence commission, staffed 24/7 by judges and former judges. It seems that the Foreign Office argued in favour of retaining the current system of ministerial warrants because,

“judicial authorisation might ‘disadvantage the UK’ because judges would be liable to refuse applications that Ministers”,

might accept. Anderson’s perfectly reasonable response was that,

“Ministers might be tempted to issue warrants in circumstances where it is illegal to do so, that would seem to me a strong argument in favour of judicial authorisation rather than against it”.

It is my firm belief that a Bill that lacks full implementation of Anderson’s plan for the ISC and judicial warrants will not pass through this House or even the other place. Incidentally, on bulk suspicionless data retention under Section 8(4) of RIPA, Mr Anderson defers to the courts to determine its legality. Indeed, the European Court of Human Rights is currently deciding whether bulk collection is proportionate, and therefore legal, and this judgment may well resolve the future of bulk collection.

Anderson is in my view even more critical of two aspects of the draft snoopers’ charter than the Joint Select Committee that considered the draft Bill, and that is saying something. He says of the proposal to collect and store third-party data, such as Facebook or Twitter transactions, that,

“there should be no question of progressing this element of the old draft Bill until such time as a compelling operational case has been made”.

This is an extraordinary state of affairs for anyone who, like me, sat on the Select Committee. We were told firmly on several occasions that third-party data were an absolute necessity for public safety. Now Mr Anderson has discovered that no operational case has been made for it, and that law enforcement is not all that bothered about it.

The Select Committee was also told that web logs were essential, but Mr Anderson apparently was not told this. The committee was told that they consist simply of a record of every website visited up to the first slash in the address—for example, www.bbc.co.uk. However, when asked by Mr Anderson for a definition of web logs, the Home Office came up with something much, much broader—effectively, absolutely everything that we do on the internet. Even with the considerably more restricted definition of web logs given three years ago, the Select Committee could not agree on whether the Government should have the capability to access them because of how revealing they would be of a person’s private life.

I am sure that the much wider new definition would have been rejected out of hand by the Select Committee, and quite rightly so, since it would put us seriously out of step with the rest of the world. Anderson says:

“I was told by law enforcement … in Canada and in the US that there would be constitutional difficulties in such a proposal”.

The new Australian data retention law specifically excludes web logs precisely because the Australian police told their Government that it would be a disproportionate invasion of privacy.

Anderson is also very clear on another matter that I have raised more than once in your Lordships’ House—namely, that there must be special protection for the communications of journalists and lawyers. I believe that the Government now have no option other than to give privileged communications extra safeguards, including judicial authorisation for access to communications data, prior notification and the right to challenge disclosure.

I should also like to raise the recent revelations from the Investigatory Powers Tribunal that GCHQ has been spying on leading human rights organisations, including Amnesty International, which is from time to time the Government’s opponent in various court cases. As Anderson says in his report:

“There can be no fairness in litigation involving the state if one party … has the ability to monitor the privileged communications of the other”.

The IPT ruled that GCHQ had broken its own rules, and so had broken the law, even under the current lax legislative regime. This was the third verdict this year in which the IPT has concluded that GCHQ acted illegally. So, my second question to the Minister is: will the Government instigate an inquiry into how and why respected human rights organisations have been subjected to surveillance, and will the Government order the security services to cease?

To recap: we on these Benches fully support the use of targeted intrusive surveillance to detect, prevent and prosecute serious crime. It is high time for the shambles that is the legislative position on surveillance to be addressed with a new Bill. But for that Bill to command widespread support in this House and the other place, the Government are going to have to get the balance right between security and privacy, which they have shown no inclination to do so far. They could start by engaging with the civil society groups with which they have had no contact for the past three years. Anderson tells us that consultation with law enforcement and service providers also seems to have been non-existent in the past few years.

It seems to me that unless the Government adopt a more open, more collaborative, more transparent and less secretive approach to this, the Bill is going to have a very bumpy ride indeed. It could well end up, like its predecessors in 2009 and 2012, consigned to the dustbin of history. That is not at all what we on these Benches want to happen, and not what our country needs.

--- Later in debate ---

[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—

[Lord Strasburger]

My Lords, I am reluctant to delay us on an evening when there are some transport problems, but it may have slipped the Minister’s mind that I asked him a question concerning how the Government slipped through powers giving themselves the right to hack into computers and phones without any reference to or discussion in Parliament.

[Lord Bates]

I will check again in the record but I am pretty sure that the answer was that the powers to which the noble Lord referred have been laid before Parliament but will of course have to be approved by Parliament. An approval process will have to be gone through before they can come into effect. While I am looking at my notes, I can save my colleagues from the Home Office a letter by saying that the Interception of Communications Commissioner’s report, published in March 2015, said that there were 2,795 interception warrants in 2014, compared to 2,760 in 2013 and 3,372 in 2012.

Once again, I thank noble Lords for their contributions to this debate. It has been incredibly valuable and I will make sure that it is drawn to the personal attention of my right honourable friend the Home Secretary when the Official Report is prepared.