Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord Strasburger Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 22nd July 2020 Lords Chamber

[Lord Strasburger (LD) [V]]

My Lords, this squalid little Bill would end our participation in Europe’s greatest post-war achievement: freedom for all of us to live, love and work without hindrance anywhere in 27 countries. I deeply regret its loss.

We have to wonder how we have plummeted so far since the heady days of the London Olympics. In just eight years, that pride in our country and the welcome we gave to the world have given way to division and cynicism. What has changed is that the cabal of leave campaigners, who cheated and lied their way through the referendum, went on to capture the Conservative Party and then the Government. They have not changed their shameful methods. They are still peddling the beguiling but delusional myth of British exceptionalism, claiming that everything they do is world-beating when it manifestly is not. The hard truth is that their stewardship has taken us into the relegation zone of the world Covid league. When they combine that with a hard Brexit, we will tumble out of contention altogether. Our excessive death toll from the virus was caused by the PM’s absence in February while rearranging his marital affairs, his dithering over lockdown in March and his adviser’s barely concealed fetish for herd immunity.

Yesterday’s ISC report described Russia as

“a muddy nexus between business and corruption and state power”,

but this sounds a bit familiar closer to home. Here, we have rushed planning decisions to help party donors, huge untendered PPE contracts with unsuitable companies and the ruling party being dangerously close to wealthy, Kremlin-connected Russians. Indeed, Mr Johnson has a penchant for oligarchs’ hospitality. At the risk of gifting them kompromat in 2018 he cavorted with them, without his security detail, but with a former Russian spy, at an Italian palazzo. At the same time, the citizens of Salisbury were reeling from Russia’s use of deadly nerve agent on their streets.

The Prime Minister’s chief adviser, who, remarkably, retains his post while being literally in contempt of Parliament, and whose mantra is “Never admit mistakes, never apologise, never resign”, has three years in Moscow on his CV. Is it then any wonder that these people buried the ISC report before the election, or that they are still resisting the cross-party calls for an investigation into Russian interference in the referendum? What on earth could they possibly have to hide?

Metropolitan Police: Live Facial Recognition

Lord Strasburger Excerpts

Monday 16th March 2020 Lords Chamber

Tabled by

[Lord Strasburger]

To ask Her Majesty’s Government what discussions they have had with the Metropolitan Police about the use of Live Facial Recognition deployments; whether the watchlists for such deployments are composed exclusively of serious criminals; and what is the definition of serious criminals for this purpose.

[Lord Foster of Bath (LD)]

On behalf of my noble friend Lord Strasburger, and with his permission, I beg leave to ask the Question standing in his name on the Order Paper.

Policing and Crime Bill

Lord Strasburger Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 18th January 2017 Lords Chamber

[Baroness Hollins (CB)]

My Lords, many victims of phone hacking, harassment and press intrusion are relying on part 2 of Leveson to proceed and to provide answers to suspicions of corruption between the press and public officials, including the police. Many noble Lords will have received correspondence from the Hillsborough Family Support Group and from Jacqui Hames. Those letters are quite concerning and show the need for further understanding of what happened and what went wrong so that we can appreciate whether adequate measures are in place to ensure that that kind of activity does not happen again.

My family has an interest in part 2 being carried through, as promised by our previous Prime Minister. Dozens of other families and individuals have been affected and also want answers. It does seem fair that we have the inquiry. The misinformation by some newspapers leading up to the close of the consultation may indeed have led to a very large number of formulaic responses. I hope that Her Majesty’s Government will have the wisdom and moral courage to stand up for what is right in this situation and to go through with part 2. I find it very difficult to believe that financial privilege is really the reason for the current caution in this matter. I support the amendment.

[Lord Strasburger (LD)]

My Lords, I will speak briefly to the amendment in the name of the noble Baroness, Lady O’Neill. On two occasions, this House has previously considered the subject of whether Leveson 2 should proceed and, on both, came down firmly in favour of it going ahead. Whether or not the noble Baroness decides to test the opinion of the House today, it is important that the Government be reminded that your Lordships’ House is not going to let the matter drop.

Some very pertinent questions remain unanswered. I draw the House’s attention to just one of the terms of reference for Leveson 2 and the important issues that remain unresolved. The sixth term of reference is:

“To inquire into the extent of corporate governance and management failures at News International and other newspaper organisations, and the role, if any, of politicians, public servants and others in relation to any failure to investigate wrongdoing at News International”.


It is essential that, in such a vital industry as the press, the extent and nature of corporate governance and management failures be established. This is underscored by the fact that many of the leading executives are still in post, have returned to their post or retain key roles in the industry. These include the chief executive of News UK, the editor-in-chief of Associated Newspapers and the director of legal affairs at the Telegraph, who had the equivalent post at Trinity Mirror during the phone hacking scandal and its cover-up.

The questions that need addressing are as follows. First, how did it come to be that phone hacking and the unlawful blagging of personal data persisted on such an industrial scale at certain titles for so long; in the case of News UK and Trinity Mirror for at least 10 years, and for several years after journalists at both companies were first questioned by the police under Operation Glade in early 2004? Secondly, how and why was phone hacking and the unlawful blagging of personal data covered up at some of the largest newspapers, in the face of emerging evidence that executives knew about the practice and some findings and admissions in the civil courts to that effect? Thirdly, is it appropriate that no executive has lost their job over the corporate governance and management failures that took place? Has there been a cover-up of the cover-up of wrongdoing?

I will not delay the House further as I suspect noble Lords would like to move on to other matters. Suffice it so say that there are several other topics that Leveson 2 is scheduled to examine and they are of equal importance to the one I have highlighted. Leveson 2 is needed to inquire into suspicious matters affecting our police, our newspapers and our politicians. Since the completion of part 1 of Lord Leveson’s inquiry, the case for part 2 has become even stronger.

[Lord Pannick (CB)]

My Lords, I declare an interest as a regular adviser to the press on regulatory matters. It has not yet been mentioned today, but your Lordships may wish to take into account that, since Leveson was instituted, there have been large numbers of criminal trials and civil proceedings in which the conduct of the press and the police has been on trial. I am far from convinced that the time, expense and use of judicial resources that will be required by Leveson part 2 are therefore justified. However, your Lordships do not need to decide that issue today—it is the very matter under consultation by the Secretary of State. If the Secretary of State’s answer is unsatisfactory to noble Lords, this House and the other place are perfectly entitled to, and no doubt will, reconsider the matter.

The noble Lord, Lord Rosser, mentioned the unsatisfactory element of the amendment of the noble Baroness, Lady O’Neill: that it appears to give Lord Justice Leveson a veto over the views of Parliament. I hope that when considering the consultation issues, the Secretary of State will privately talk to Sir Brian Leveson and take his view as to whether he thinks, with all of his enormous experience, that Leveson 2 would be justified. I cannot support the Motion of the noble Baroness, Lady O’Neill.

Investigatory Powers Bill

Lord Strasburger Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Janvrin (CB)]

I speak to Amendment 3, in my name, and note my interest as a member of the Intelligence and Security Committee. A lot of the points made by the committee have already been taken on board by the Government following discussions and scrutiny in another place.

In the committee’s report on the draft Bill, we recommended that privacy protections should form the backbone of the legislation around which the exceptional powers are then built. This is absolutely crucial to the whole purpose of the Bill. Following scrutiny in another place, the Bill introduced in this House now has in Clause 2 provisions on “General duties in relation to privacy”. I hope that your Lordships welcome the inclusion of the new clause, which crucially includes the requirement that intrusive powers should be used only when the information being sought cannot be obtained by other less intrusive means.

However, the Bill still lacks a clear statement at the beginning about the right to privacy. This is the purpose of the amendment in this group in my name. We propose inserting a new subsection at the very start of the Bill, which places an individual’s right to privacy at the forefront of the legislation. I note that this amendment is similar to Amendment 2 in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, which attempts to achieve something similar, although I suggest that the amendment in my name is the more straightforward of the two options before us.

Finally, I think that this short but necessary amendment is compatible with the more detailed provisions already existing in Clauses 1 and 2.

[Lord Strasburger (LD)]

My Lords, it is a good idea to remind ourselves at times like these that we live in a democracy, and part of what defines a democracy is that our Government do not rule us and we are not their subjects; they govern on our behalf, and with our consent. So when our Government ask us to hand over prodigious quantities of our information that reveal in detail how we live our private lives, we must take great care.

We all have something to fear from these surveillance powers, for none of us can guarantee the benevolence of future Governments. The surveillance programmes run by our Government now go far beyond anything George Orwell imagined. The more personal data are dredged up and stored, the more the risk of misuse. Now that most of us carry smartphones, government agencies and the police have unprecedented access to location information about where we are 24 hours a day, seven days a week. They can also get their hands on all the information on our phones and computers: our contacts, our diaries, our emails, our web browsing, our social networking and everything we do on the internet. Their access to our lives has expanded massively in the past 10 years. In addition, there are myriad new databases that create digital dossiers about our lives which are held by private companies and public bodies, including our banks and our doctors, and the Government have access to all of them.

In short, far from going dark, as is often claimed, the police and security services are enjoying a golden age of surveillance. If government agencies were offered the choice of current capabilities or pre-internet capabilities, they would overwhelmingly prefer their surveillance abilities today. Listen to the words of Wolfgang Schmidt, who was a lieutenant-colonel in the Stasi in Berlin. When he first learned of the extent of surveillance currently carried out on their populations by the British and American Governments, Schmidt thought carefully and then said:

“You know, for us, this would have been a dream come true”.

Some proponents of bulk surveillance tell us, “You have nothing to fear, if you have nothing to hide”. It has been said that the original maker of that claim was Joseph Goebbels. Many people’s response is simply, “I don’t have anything to hide, but I don’t have anything I feel like showing you either, and the way I live my life is none of the state’s business”.

I fully support the amendments in this group. They seek to give effect to the Intelligence and Security Committee’s—

[Lord Ashton of Hyde (Con)]

My Lords, I am grateful to the noble Lord for giving way. We have a great number of amendments to deal with today. I respectfully ask the noble Lord to address the amendments.

[Lord Strasburger]

That is exactly what I was just doing.

I fully support the amendments in this group. They seek to give effect to the Intelligence and Security Committee’s demand that privacy protections should form the backbone of the legislation around which these surveillance powers are built as exceptions to the privacy norm.

Clause 2 was the Government’s answer to the ISC’s demand, but it is incomplete and insufficient and needs to be seriously beefed up. The amendments in this group give full effect to the ISC’s reasonable requirement that privacy should be the backbone of the Bill by, among other things, incorporating the 10 tests devised by the Royal United Services Institute review. I commend these amendments to the House.

[Lord Brown of Eaton-under-Heywood]

I, for my part, am entirely content with Amendment 3 in the name of the noble Lord, Lord Janvrin. I marginally prefer it to Amendment 2. It may be doubted whether either is strictly necessary, but let us have the simpler one. With the greatest respect, I regard Amendment 1 as entirely superfluous. It unnecessarily overcomplicates things and in large part it overlaps with other provisions in the legislation. It just is not a good idea. It is all very well to treat this legislation with some element of scepticism, but, please, not cynicism. That is the way this is approached in that context.

--- Later in debate ---

[Lord Strasburger]

My Lords, Amendment 17 in my name would provide for a statutory public interest defence for the offence set out in Clause 3. Clause 3 effectively reproduces the RIPA Section 1 criminal offence of phone hacking, of which the Prime Minister’s director of communications, Andy Coulson—among others—was convicted when he was editor of the News of the World.

I invite the House to support the amendment in this group proposed by the noble Baroness, Lady Hollins, which provides access to justice for victims of phone hacking and incentivises the adoption of the Leveson reforms which the Government have stalled on. But there is another matter which must be considered and which my amendment addresses—the absence of a statutory public interest defence for voicemail interception or any other type of breach of Clause 3.

Let us consider a situation where suspected serious wrongdoing is being investigated by a journalist or NGO and that journalist or NGO has no faith that the police will adequately investigate the matter; for example, a case of police corruption or, more practically, a case where the police have failed to investigate a case such as that of Jimmy Savile. In such circumstances, if the journalist or NGO intercepted voicemail messages which showed the corruption or illegality, and then exposed it, that person should have a defence that he or she can rely on.

Amendment 17 provides for this. The CPS can of course choose not to prosecute under the public interest arm of the “threshold test for prosecutors”, but that is not good enough. Prosecutors make their decisions on the public interest element after reviewing a file of evidence produced for them by the police and after an investigation which addresses the separate question of whether there is enough evidence to pass the first, evidential arm of the threshold test. Such a police investigation could last for months, if not years, and will involve interviews under caution, search warrants and perhaps arrest. That is a real disincentive to investigative journalism.

If there is a statutory public interest defence, the police will be able to see at an early stage that however much evidence they gather to prove that the act took place, or indeed even in the case of an admission, they will not be able to defeat the defence if the facts are clearly made out and their investigations will be curtailed. The benefit of a public interest defence therefore is not so much that it will allow investigators in the public interest to be acquitted at trial, or even that the CPS will choose not to prosecute on the evidential arm before even having to consider the public interest, but that the police will abandon investigations where the public defence is clearly made out in the facts. That will have the benefit of removing the chilling effect of potential police investigations and possible prosecution from investigative journalists who we rely on on these occasions to root out wrongdoing. Perhaps I may invite the Minister to engage in a constructive discussion about whether a narrow but valuable defence can be crafted. After all, noble Lords will be aware that there is a statutory public interest defence in Section 55 of the Data Protection Act, a provision that in Clause 1 of this Bill the Government are relying on as adequately protecting our privacy.

The investigative journalist Nick Davies of the Guardian exposed the hacking scandal. Had he had to intercept voicemail messages between Andy Coulson and one of the several convicted news editors who served under him in order to bring the story to our attention, that would have been in the public interest. It would not have been right that in the absence of a public interest defence which the police knew was valid, he had been arrested and questioned by the very police force whose failures he uncovered. That is why this amendment is so important and I commend it to your Lordships.

[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have Amendments 16, 20, 21, 22 and 84 in this group.

Amendment 16 concerns the offence of unlawful interception, but in the Bill as drafted that applies only to public telecommunications systems, private telecommunications systems and public postal services. It does not apply to private postal services. Examples of those could be the postal services used by the legal profession such as Legal Post and DX. Can the Minister inform the Committee why private postal services are not included in that provision?

Amendment 20 relates to the provision that,

“Conduct which has lawful authority for the purposes of this Act … is to be treated as lawful for all other purposes”.

Presumably, this provision is to avoid the problem we have had in the past where, while interception or equipment interference was allowed under one piece of legislation, it was an offence under the Computer Misuse Act 1990. Presumably, that is why this provision has been included, but surely it should apply to existing legislation—and it should state that it should apply to existing legislation—not to legislation in the future.

Amendment 21 is again about any other conduct under the Bill being treated,

“as lawful for all purposes”.

Surely this should not be as broad as that. It should be restricted to what is lawful only for the purposes of this Bill.

Amendment 22 concerns the service of monetary penalty notices. Paragraph 4(4)(g) of Schedule 1 allows for an oral hearing before the commissioner, but the amendment would add that the person who applies for and is granted an oral hearing before the commissioner can be legally represented.

Returning to something that I referred to in my opening remarks, Amendment 84 is about restrictions on unauthorised disclosures which as written would prevent the Secretary of State from disclosing the existence and contents of a warrant. The amendment would allow the Secretary of State to disclose the existence and details of a warrant if she felt it was necessary in order for Parliament to carry out its functions. As I mentioned before, I do not see how the argument can be made that the Secretary of State should be involved in the authorising of warrants because she can be held to account, when she is not able, under the terms of the Bill as drafted, even to admit that such a warrant exists.

--- Later in debate ---

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I will speak very briefly on Amendment 16, to which I added my name, which has already been dealt with by the noble Lord, Lord Paddick. Should the Government accept the logic of that amendment, they might also want to look at Clause 4(8)(b)(i), which ought also to be amended to include “a private postal service”. Like the noble Lord, Lord Grabiner, I think the amendment in the name of the noble Lord, Lord Strasburger, sounds like a carte blanche for allowing private phone hacking. The noble Lord came up with better words than I could when he spoke about thinking that “public interest” and of “interest to the public” were the same. I would be very alarmed at the idea of allowing phone hacking by private bodies, simply because they thought it might be in the public interest.

The more substantial issue in this group is dealt with in Amendments 18 and 246—I refer to them as the Leveson amendments. The Labour Party has an interest in Amendment 18. Our names are not on it but our former leader, my right honourable friend Ed Miliband, was, along with the current Prime Minister, one of the signatories to the deal which has already been described and which led to amendments being withdrawn in this House and in the Commons. Failing to implement Parliament’s decision on this matter is a shameful disregard for the law on the part of the Government. The Act was passed in good faith and the Government should have implemented it, in accordance with the wishes of this House and the other place. Non-commencement is an unacceptable device to undermine legislation which has been passed.

Amendment 18 seeks gently to encourage the Government to bring into effect the law already passed, and we hope they will agree to do that. I will not rehearse the case that has been made so well already. However, it is remarkable that, as we consider a Bill on investigatory powers that sets out clearly and openly what the state and its agencies can do regarding hacking—the limits, the safeguards and the penalties for exceeding the law—private and unaccountable profit-making bodies such as the press continue to get away with things our spooks rightly would not be able to. The Government should not undermine Parliament by failing to commence Section 40 and we hope that, today, they will show their willingness to act now.

[Lord Strasburger]

Before the noble Baroness sits down, can I point out that I share entirely her concerns and those of her noble friend about journalists confusing the public interest with the interest of the public? If there were any such amendment along the lines that I suggested, it would have to be drafted so narrowly that that confusion could not exist.

Investigatory Powers Bill

Lord Strasburger Excerpts

Wednesday 27th April 2016 Lords Chamber

Asked by

[Lord Strasburger]

To ask Her Majesty’s Government whether clause 217 of the Investigatory Powers Bill will give them the power to force a company to break its own encryption in a similar manner to the United States Federal Bureau of Investigation’s abandoned attempt to make Apple break the security of an iPhone.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Investigatory Powers Bill maintains and clarifies existing powers to ensure that terrorists and criminals cannot use technology to escape justice. The Bill provides our law enforcement and security and intelligence agencies with the ability to require communications service providers to remove encryption that they have applied themselves in tightly defined circumstances where it is reasonably practicable to do so.

--- Later in debate ---

[Lord Strasburger (LD)]

My Lords, Clause 217 of the Investigatory Powers Bill gives the Government almost unlimited powers to force, in secret, companies to remove “electronic protection” from their products. How do the Government intend to use this power in the increasingly frequent cases where a company has designed the security of its products so that even the company itself is incapable of unlocking the equipment or decrypting the data? Will Apple and others be required to redesign their products so that they can break into them, or will they be required to stop selling them in the UK?

[Lord Keen of Elie]

With respect to the noble Lord, Clause 217 does not provide anyone with unlimited powers with respect to these matters; it deals with technical capability notices—a notice which is given after discussion with the Technical Advisory Board to a company requiring it to retain the ability to decrypt information if and when an appropriate warrant is served pursuant to Clause 36 of the Bill. Therefore, it applies only to the extent that it is reasonably practicable for the company to comply. The relevant tests are clear in the Bill, as the noble Lord may recall, as he sat on the Joint Committee that considered the Bill between November 2015 and February 2016.

Draft Investigatory Powers Bill

Lord Strasburger Excerpts

Wednesday 4th November 2015 Lords Chamber

[Lord Bates]

Accountability lies in that it was the Secretary of State, first, who made the decision and that is then checked by a judge. That would be the element of public accountability in that circumstance, but we are talking particularly about warrants which are required in relation to intercept, which is the most intrusive form of investigation power, not necessarily the communications data.

[Lord Strasburger (LD)]

My Lords, shortly after being introduced to this House I had the temerity to start raising concerns about the plethora of unfit legislation covering digital surveillance powers and the ineffective controls and oversight over their use. Initially, my questions in this Chamber were met with a mixture of stonewalling by Ministers and ridicule from certain noble Lords connected to the security establishment.

[Lord King of Bridgwater]

Where is your question?

[Lord Strasburger]

It will come. I am gratified to see that all parts of the House now recognise that the current laws are hopelessly flawed and that we need to start with a clean sheet of paper to build a fresh legislative framework to cover this important and contentious area. When I start to read this 370-page document I shall do so in the hope that the detail can live up to the billing the Home Secretary gave it a few hours ago. From listening to her replies to questions, I know already that there are several concerns, including a forthcoming deadly embrace with the industry over encryption.

[Noble Lords]

Question!

[Lord Strasburger]

I shall save my questions for the Select Committee, but in the mean time I shall ask just one. What is the timetable for the forming of the Joint Committee and when do the Government hope to receive its report?

[Lord Bates]

The Joint Committee is in the process of being formed, through the usual channels. It is hoped that that will happen in the next few weeks. It is hoped that it will have produced its report by the spring and that a revised Bill, if it is necessary to revise the Bill, will then be published for consideration in the other place.

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.

Communications Data

Lord Strasburger Excerpts

Wednesday 17th June 2015 Lords Chamber

[Lord Bates]

I will be as brief as I can. There is a specific issue here, in that, during the previous coalition Government, our coalition partners took a different view—I mean no detriment—so there was no clear government position on which to consult. That has changed. There is a very clear government view now that we need this, and fast.

[Lord Strasburger (LD)]

My Lords, there are half a dozen or so civil liberties organisations that could greatly assist the Government in coming up with a balanced investigatory powers Bill. Which civil liberties organisations have the Government consulted?

[Lord Bates]

They will have the same opportunity as anybody else to participate in the consultation process. There is also a statutory code of practice that has been introduced, and we are open to consultations. We will listen to them but I have to say that at present, when you see the threats that are faced by this country, I am going to listen more to the people who are actually trying to protect us and keep us safe.

Queen’s Speech

Lord Strasburger Excerpts

Tuesday 2nd June 2015 Lords Chamber

[Lord Strasburger (Non-Afl)]

My Lords, we live in dangerous times—the danger of imported terrorism from various parts of the world; threats from newly aggressive Russia and China; and danger from rogue nuclear states such as Iran and North Korea. However, the biggest peril we face is losing, or throwing away, the freedoms, liberty, privacy and lifestyle that have set this country apart from others in the world—the very way of life that Islamic State, al-Qaeda and groups like them seek to destroy.

If we are not careful, we will allow misguided people within our country and Government to turn Britain into a country where the authorities know everything about the private lives of all of us. Even under a benign and well-meaning government, these excessive powers are vulnerable to misuse by rogue elements within it or by criminals at home or abroad. Worse still, the ability to know everything about everyone would be ripe for wholesale abuse by a less well-intentioned future regime, which would find that it possessed ready-made tools for repression.

We must deny the Home Secretary and her most ardent securocrat, Charles Farr, their attempt to have pretty well unlimited and untrammelled access to the most private data of everyone in our country. In fact, we should be reducing, not increasing, their reach into the lives of innocent citizens. They have shown no inclination whatever to consider the possible unintended consequences, if they are unintended, of the draconian powers they are demanding. They do not believe, and they cannot see, that there are compelling arguments to restrain those powers and that there is another side to the coin. They hardly engage at all with those who speak for the need for constraints on intrusive powers, for proper authorisation, for transparency and for oversight. When they are forced to enter the debate, they do so only in the most desultory and reluctant manner.

When the investigatory powers Bill is published, we can hope that it will bring the existing legislation up to date and clearly restrict the occasions when snooping is permitted. We can hope that the Bill will remove the hidden loopholes that have allowed the state massively to expand, completely in secret and behind closed doors, its prying into our private lives without the informed permission of Parliament and the people. We can hope that the Bill introduces more independent authorisation procedures which ensure that intrusions occur only when they are necessary and proportionate. We can hope that, for the first time, there will be meaningful oversight to ensure that non-compliance is discovered and punished. We can hope that the Bill contains these reasonable and essential provisions, along with others which are so important if these powers are to have legitimacy with the public.

I, for one, am not holding my breath. The Home Secretary and Mr Farr both have plenty of previous form, and it is not encouraging. They have demonstrated time and again that they are either incapable or unwilling to come to Parliament with a balanced package that protects the population from harm by permitting the most aggressive intrusion into the lives of major criminals and terrorists but which leaves the rest of us alone. The Government have repeatedly made the pro forma statement that all UK surveillance is conducted within the law. This has recently been shown to be untrue, and in any case it is a worthless claim because the legal structures surrounding surveillance are riddled with flaws and loopholes—some, I believe, inserted deliberately. For example, the Home Office has recently had to admit to the Investigatory Powers Tribunal that the flimsy protections that should prevent interception of ordinary citizens’ communications without a warrant are being circumvented on a wholesale basis. This is because the Home Office decided that anyone who uses popular services such as Google, Twitter, Facebook and many others are exempt from protection from unwarranted snooping merely because the servers of those companies are located outside the UK. With gaping holes like that in our legislation, who needs to break the law?

No sensible parliamentarian will deny our police and security services all the powers they need to investigate and prevent serious crime and terrorism, but these highly intrusive powers to pry into all aspects of a person’s most intimate and personal life must be very strictly targeted on individuals who are genuinely suspected of planning or perpetrating the most serious crimes, and no one else. The state has no right to snoop on the rest of us; it is as simple as that. The current legal framework fails to make the distinction clear, and for that reason it is not fit for purpose. It also fails to deliver an oversight process which works so that abuses of the rules, such as they are, will probably be detected and punished. For that reason, too, it is not fit for purpose. With the Conservatives no longer constrained by the principles and common sense of the Liberal Democrats, there is every reason to fear that the forthcoming legislation will be long on more intrusive powers and decidedly short on limitations on the use of those powers, and the oversight to make sure that those limitations are being observed.

Two days ago, American lawmakers made the historic decision, prompted by the Snowden revelations, to start reversing four decades of ever-increasing intrusion into their citizens’ affairs, and to introduce real transparency into the use of these powers. I put it to noble Lords that it would be perverse and completely unacceptable for our Government’s response to Snowden’s disclosures of secret and unauthorised mass surveillance in this country to be for the state to try to go deeper and deeper into places where it has no business.

With the sad lack of a substantial number of MPs who will fight for our privacy and our liberties in the other place, it will be up to Peers on all sides of this House to fill that vacuum on behalf of British citizens. We must stand firm against unbalanced and disproportionate prying into our lives. We must insist on clearly defined limits on the use of these surveillance powers and must diligently search out and destroy the loopholes that the Government will no doubt insert again. We must ensure that the oversight of the use of these powers is so effective and penetrating that it acts as a real deterrent to abuse. It will be our duty not just to stop but to reverse the hidden drift into more mass surveillance, more snooping on the innocent and more gratuitous prying into our lives by people who have no need and no right to do it.

Serious Crime Bill [HL]

Lord Strasburger Excerpts

Monday 2nd March 2015 Lords Chamber

Moved by

[Lord Strasburger]

That this House do agree with Amendment 11A as an amendment to Commons Amendment 11.

11A: Line 10, at end insert—
“(aa) shall include provision designed to protect the confidentiality of personal information obtained in connection with a person’s acting as a minister of religion, as a healthcare professional or as a Member of Parliament;(ab) shall include provision about the circumstances in which notice of legal proceedings relating to notices and authorisations under Part 1 of this Act in respect of data should be given to persons to whom the data relates;”

[Lord Strasburger (LD)]

My Lords, when this Bill was last debated in another place, the Home Office rejected a new clause tabled by Julian Huppert and backed by cross-party Back-Benchers that was very similar to this Amendment 11 but had a number of key differences. My amendment seeks to probe the justification, if there is any, for the Government’s omission of those provisions.

The first of these relates to the protection that is due to other privileged material, as it is rightly intended to be provided for journalistic material. This is what might be called medical privilege, religious or spiritual privilege and elected representative privilege. When an individual makes contact with a doctor, priest or MP, they are entitled to a higher level of confidentiality than applies to other matters. Therefore, just as journalistic material should be subject to a process involving judicial authorisation before communications data are accessed by the police, so should this sort of communications data.

The justification for providing protection in respect of journalistic material in RIPA, provided by the Government when they eventually agreed, was that it was necessary to protect whistleblowers who could be identified by the police accessing the communications data of journalists. Surely the same applies in respect of the communications data of Members of Parliament, and their equivalent in the European Parliament, the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. Why are the Government in their new clause providing only that the code of practice should protect whistleblowers’ identity when they go to the press and not when they go to their MP to reveal serious wrongdoing?

The second justification given by the Government for judicial authorisation before the police could access journalists’ communications data was that there was confidential information inherent in the “metadata” that would be obtained; namely, that someone identifiable had contacted a journalist. Exactly the same applies in respect of communications data relating to medical practitioners. The fact that a certain person has been in communication with a healthcare professional with a specific specialty in itself reveals confidential information. Obvious examples are mental health care professionals, STD clinics, obstetricians and so forth. The Home Office has provided no justification for failing to provide protection for such data, nor indeed has it provided for safeguards to be written into the code of practice, which the amendments before us deal with. This is even more peculiar when one sees that the Government’s proposed change to the code of practice, which was all they were offering before the IOCCO’s report was published, makes specific reference to the types of privilege—medical, spiritual and Member of Parliament—which my amendment would require a code of practice to deal with. It is not good enough for the Home Office to say that it wants to go no further than the recommendations in the IOCCO’s report because that report in several places made reference to the equivalent public interest that attaches to the confidentiality in these areas.

The second matter that my amendment deals with is the question of notice for journalists of an application to a judge when their confidential sources’ identities may be revealed. Under PACE, when the journalist holds the confidential material—called “excluded material” under PACE—the default position is that the journalist is given notice; that is, that the application is heard by the court inter partes. When it comes to RIPA and communications data, the person who holds the material will in general be a telecoms company or an ISP. They are not going to be in a position, of course, to contest any application. They have no significant interest in protecting the confidentiality of any of the information they provide to the police, providing that the police are acting within the law. It is only the journalist who can and should, if circumstances permit, assist the court in identifying the degree of public interest in identifying any of his or her sources.

By analogy with the provisions in PACE, it seems only right that there should be provision in the new legislation that the Government have promised after the election to provide for judicial authorisation for journalists to be given notice of the application. No doubt it will be appropriate also to provide that that notice does not have to be given when there is a risk that such notice might significantly prejudice a criminal investigation because, for example, the journalist, himself or herself, is a suspect, or, if given notice, could destroy evidence, or because the journalist might tip off a contact who was a suspect in a criminal investigation that might lead to the suspect destroying evidence or absconding.

That is why my amendment seeks to require that the code of practice makes provisions for the circumstances in which the journalist could and should be notified of an application to access communications data that is likely to lead to the identification of a confidential source. It should make no difference to the question of whether, without prejudice to an investigation, a journalist can have the opportunity to make his or her case to the judge when the data in question are held by a third party telecoms company.

The courts have found it extremely useful to hear representations from the media about non-broadcast footage when the police had applied under PACE for the release of that material. The protection of whistleblowers requires that the only people who can speak up for them in court before they are identified under this legislation are given notice of the application, subject to not prejudicing the investigation. This is a concern for my party and the National Union of Journalists.

Before I finish, I should like to raise a number of questions to the Minister on this area. After Julian Huppert tabled his new clause, which would provide for judicial oversight in RIPA for applications relating to journalistic sources, the Government agreed to make a temporary arrangement that the police would be directed to use PACE when such circumstances arose, and that this would be achieved by a change to the code of practice. My first question is: when will the Government bring forward the proposed code of practice, because time is short before Parliament prorogues? Secondly, will my noble friend and officials meet urgently with me and the National Union of Journalists to discuss the form of that code of practice? Thirdly, is it intended that the code of practice will, as I have indicated by this amendment, set out the circumstances in which journalists can be given notice of an application under Schedule 1 of PACE, even though the existing PACE provisions do not provide that they be given notice because they are not holders of the data or material? Fourthly, will the Home Office take the opportunity in this code of practice to make it clear that the police should use PACE procedures for other forms of privilege before obtaining communications data relating to the other forms of privilege that I have set out, as well as to communications data that might reveal contact between a lawyer and his or her client? As I explained, the Government’s previously proposed change to the code of practice did specify that consideration needs to be given to these other forms of privilege on the same basis as that given to journalistic privilege.

The Government, in response to Mr Huppert’s proposed new clauses, also published draft clauses that they said would be included in any update of RIPA legislation following the report of the Anderson review, early in the next Parliament. Those draft clauses were made available to Members of the other place only about an hour before the debate on Mr Huppert’s new clause. It therefore seems appropriate to use this opportunity to ask the Government to explain some of their provisions before this legislation goes through, given that Members of the other place were not given that opportunity before deciding not to press Mr Huppert’s new clause.

My first question is why there is a provision in the draft clauses to bypass judicial authorisation for RIPA requests for telecoms data in the circumstances of “imminent threat to life”, when such provision does not exist in PACE. Why is the threshold used by the Government to decide when the journalistic privilege requirement to put the application before a judge is triggered higher in their draft clauses than in PACE? The draft clause states that the requirement for judicial authorisation is triggered when the purpose in whole or in part is to identify a journalist’s sources, whereas in PACE the threshold or test, much more appropriately, is that the application is likely to reveal the source. As I have explained, I believe there should be circumstances in which a journalist should be notified of an application to access their communications data, and that this should be included in the new legislation.

The Government’s draft clause, unlike PACE, does not even provide for notice to be given to those who hold the data. Will the Government explain this or reconsider it? The Government’s draft clauses do not contain the same provision as in PACE for it to be an offence to destroy material sought under an order granted by a judge. Will the Minister please explain this? Finally, will the Minister explain why in the draft clause there is no provision for the judge making the decision to have regard to the public interest in maintaining the confidentiality of journalistic sources? This was proposed by the amendment in the other place. I beg to move.

[Lord Bates]

My Lords, in responding to my noble friend Lord Strasburger, I pay tribute to him for the way he has engaged with this issue. We have had some conversations about this, and I know that this is a subject he feels very passionately about. He also brings a great deal of expertise to the role, and a knowledge of how communications actually work.

The special case being made for journalists here is the fact that not only did the Interception of Communications Commissioner confine his particular examination in his report to looking at journalists, but someone who speaks to, say, a lawyer does not reveal what was said. If someone is trying to establish the source of a leak, knowing who spoke to a journalist may be more important than actually knowing what was said. This does not extend in the same way to other professions. That is what we are trying to say. It is a different way of looking at the particular situations in which journalists find themselves. I also say to my noble friend that we will very shortly lay before Parliament for approval the draft acquisition of communications data code of practice, following the public consultation. That will provide another opportunity to look at this.

My noble friend asked some specific questions about when the Government will bring forward the proposed code of practice. As the Minister for Modern Slavery and Organised Crime made clear in the House of Commons last week, the Government hope that the code of practice will be in place as soon as possible, but obviously this will be subject to parliamentary approval. My noble friend asked whether the Minister and officials will urgently meet with him and the National Union of Journalists to discuss that code of practice. Officials have already met with the National Union of Journalists early in the process. The NUJ has also responded to the consultation, and we have considered their response. Following the consultation, we have implemented significant changes in the code, as I have stated, and will publish it shortly. However, I am of course very happy to meet my noble friend and any others from the NUJ whom he wishes to bring with him.

It was also asked whether the code of practice will set out the circumstances in which journalists can be given notice of an application under Schedule 1 of PACE. My honourable friend Karen Bradley addressed the issue of providing notice in the House of Commons when considering these amendments in another place last Monday. It has never been the practice in this country that those who are subject to a communications data application are notified. There are obvious reasons for that, given that the crime may be under active investigation. We do not intend to depart from that, but we are of course very happy to listen to concerns.

--- Later in debate ---

I totally accept that those answers, as far as they go, may not be entirely satisfactory to my noble friend, but I hope that the overarching commitment that I have given to continue our discussion on this very important issue will enable him to withdraw his motion.

[Lord Strasburger]

My Lords, I gave my noble friend the Minister advance notice of my questions. He has made a very good attempt at answering them and I thank him for that. Obviously, the devil will be in the detail of the code of practice. I will very gladly accept his invitation to come and discuss that with him. Clearly, we will all return to this subject in the new Parliament when the Anderson review is delivered. For now I am very happy to withdraw my motion.

Motion on Amendment 11A (as an amendment to Amendment 11) withdrawn.