Investigatory Powers Bill

Alex Chalk Excerpts

Tuesday 15th March 2016 Commons Chamber

[Mr Paterson]

No, I think the politician’s personal feelings are wholly irrelevant. They are responsible to the public and the House and have to report on those decisions, and it is they who should be exclusively responsible for these very difficult, subjective decisions.

During my time, I had real respect for the thoroughness with which warrants were prepared, but on occasion I refused them, and there was a clear decision-making procedure. I was also acutely aware that my decisions would be subject to review after the event, and I respected the review process. As shadow Secretary of State, I spent three years visiting Northern Ireland every week, and I built up a level of knowledge that was really useful when I took over as Secretary of State. Some decisions had to be made in imperfect conditions with imperfect information. That is the nature of working with intelligence to protect the public. A decision sometimes required a personal judgment about what was in the public interest, not just a legal interpretation.

[Alex Chalk (Cheltenham) (Con)]

Does my right hon. Friend agree that the point made by the hon. and learned Member for Edinburgh South West (Joanna Cherry) was a fair one: it is very difficult for the House properly to scrutinise what was the thought process and evidence base because so much of it will be considered in the national interest and so will not be transparent to us in the Chamber?

[Mr Paterson]

No, I was fully aware that I had to come regularly to the House to answer questions and that I could be called before the Select Committee. There were various methods by which the House could scrutinise my decisions.

The key thing is that the public demand for more scrutiny, which I fully appreciate, should not interfere with operational agility and thereby put the public at risk. The current system works and could, with amendments, offer much greater scrutiny. I am in favour of a more rigorous and rapid review process. The proposal in the Bill is that a warrant could be issued in emergencies but would be reviewed within three days. This could be made applicable to all warrants, and I would welcome that, but other practical and operational issues do not appear to have been considered.

It is not clear in the Bill what the procedure would be should a commissioner refuse a decision by the Secretary of State. There is potential for even further delay and confusion in clause 21(5), under which the Secretary of State may go to the Investigatory Powers Commissioner. Under the current arrangement, it is quite clear who is responsible: the Secretary of State, accountable to Parliament. Under the proposed system, with possible delays and divided decision making, it is not clear who is ultimately responsible should something go horribly wrong, with devastating consequences for the public. Should a terrorist operation be tragically successful because of delay and differences of opinion under the proposed dual lock, who would be legally responsible? Who would the relatives hold to account and potentially sue? The Secretary of State will be accountable to the House of Commons, but to whom will the judicial commissioners and the Investigatory Powers Commissioner ultimately be accountable?

The impossible position in which distinguished lawyers will be placed is highlighted in clause 196(5) and (6). Lawyers and judges are trained to interpret the law meticulously, but these subsections require very subjective political decisions. Subsection (5) provides:

“In exercising functions under this Act, a Judicial Commissioner must not act in a way…contrary to the public interest or prejudicial to…(a) national security, (b) the prevention or detection of serious crime, or (c) the economic well-being of the United Kingdom.”

Subsection (6) reads:

“A Judicial Commissioner must, in particular, ensure that the Commissioner does not…(a) jeopardise the success of an intelligence or security operation or a law enforcement operation, (b) compromise the safety or security of those involved, or (c) unduly impede the operational effectiveness of an intelligence service, a police force, a government department or Her Majesty’s forces.”

No law book can possibly guide a distinguished lawyer on these questions, which ultimately require a political judgment. In order for these criteria to be met, the Secretary of State should clearly be accountable here, in order to guarantee our security services’ operational agility and the ability to react swiftly and at short notice.

According to the principle of the separation of powers, it is clear that lawyers should not make operational executive decisions that might require some personal judgment. Montesquieu himself said:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…Again, there is no liberty, if the judiciary power be not separated from the legislative and executive”.

Lawyers should be brought in after the decision, in order to review the process by which the decision was arrived at. The Bill effectively brings judges into the Executive, giving them the difficult role of being both scrutineers and Executive decision makers. These roles require very different skills, and according to the separation of powers, they should be kept separate for good reason.

The further important deep flaw in the Bill applies particularly to Northern Ireland. It was illustrated in a high-profile case last October when members of the notorious Duffy family were accused of a number of terrorist offences arising out of a security services surveillance operation. The trial collapsed when the judge ordered disclosure of the tracking devices, and the case has been strongly made that as a result of this trial’s collapse, the public are at risk because of a judge’s insistence on total transparency procedure. In practical terms, this is unworkable in the current circumstances in Northern Ireland. The demand for transparent disclosure of the technology used, as required by this judge, would have compromised the methodology that keeps the public safe. It would also have educated terrorists on how to avoid detection in the future.

I am concerned, too, about clause 194(3)(e), which requires the Prime Minister to consult the First Minister and deputy First Minister before appointing an Investigatory Powers Commissioner or a judicial commissioner. I was the first Secretary of State for Northern Ireland to have responsibility, following the devolution of justice and policing to local politicians, and it was always clearly understood that the Secretary of State maintained responsibility for matters of national security; the Police Service of Northern Ireland and the security services reported to him on those matters.

I draw the attention of Ministers to the wise words of the Joint Committee, when it said:

“We are aware that particular sensitivities around these issues may apply in Northern Ireland. The Government will need to reflect on these sensitivities as this legislation progresses.”

That can be found in paragraph 419. Will the Government please commit to that?

Sadly, very few Members of either the House of Commons or the House of Lords have direct experience of this issue. Law-abiding British citizens are under threat from dangerous terrorists every day. I am acutely aware that deaths and injuries have been prevented not just thanks to the supreme professionalism of our security services, but thanks to the current swift decision-making process, which gives them critical operational agility. It will be tragic if this is lost because so few Members of Parliament understand the very real benefits of the current process. I am therefore opposed to the dual lock proposals in the Bill, and I hope they will be removed in Committee. The signing of warrants should remain the exclusive responsibility of the Secretary of State, accountable to Parliament, and the review process by distinguished members of the judiciary should be carried out sooner, more frequently and more thoroughly after the decision has been made.

--- Later in debate ---

[Alex Chalk (Cheltenham) (Con)]

Striking the right balance between liberty and security is one of the most difficult judgments we have to make as a society. Anyone who has prosecuted and defended in our criminal courts—I see several here—well understands the tension that exists between the need to protect the public from harm and preserving our precious individual freedoms. This is therefore an immensely difficult issue, and if we get it wrong, the consequences are indeed serious. But the fact that we are able to approach this Bill in a calm atmosphere, and not against a backdrop of the panic and emotion of a recent outrage, is in no small part due to the constituents of mine working at GCHQ. Their quiet, brilliant work saves lives. They avoid the limelight and do not seek our thanks, but we owe them a profound debt of gratitude.

It would be a great mistake for calmness to give way to complacency, as serious plots are thwarted with alarming regularity. Before I came to this place, I was part of the team that prosecuted five young British jihadis who had travelled from Birmingham to Dewsbury intending to detonate an improvised explosive device filled with nails at a public rally. Had the plot succeeded, the potential for carnage would have been horrifying, and I have no doubt that we would be experiencing the repercussions today.

In my experience, the people in the intelligence agencies I have met, both as a barrister prosecuting terrorism offences and since my election, are scrupulous about remaining within the law. That means we have a covenant with them. We must provide them with a piece of legislation that gives them the tools to keep us safe, but we also owe it to them to create a framework containing the safeguards needed to command public confidence—nothing less than that will do. I believe that this Bill gets that balance broadly right and it deserves a Second Reading. That judgment has been possible because the Government have listened carefully and responded in appropriate detail to the legitimate concerns raised by the Joint Committee on the Draft Investigatory Powers Bill, the Intelligence and Security Committee and the Science and Technology Committee. However, valid points have been raised today, for example on whether we ought further to limit the pool of agencies to which ICRs can be available, and on the threshold for the type and seriousness of criminality that ought to trigger their use. Those legitimate points have been properly raised, but they can be raised in Committee.

I do not have the time to examine more than a fraction of what this Bill contains, but I wish to say a few words about bulk powers. The bulk data powers in the Bill are not new. The law today has long allowed the security and intelligence agencies to acquire bulk data under RIPA and so on. Those powers underpin a significant proportion of what our security services already do.

[Joanna Cherry]

Does the hon. Gentleman accept that at the time the Act he has just mentioned was passed, bulk powers were not in people’s contemplation? Therefore, although that Act may have been retrospectively interpreted to cover bulk powers, they have never before been debated or voted on by this House.

[Alex Chalk]

The hon. and learned Lady is absolutely right about that, but what is important about this Bill is that it shines a light on precisely those powers: it clarifies and consolidates them; it unifies them into a single document; and, crucially, it strengthens the safeguards that govern the security and intelligence agencies’ use of them. That is precisely why this legislation is so important. Crucially, in future, warrants for bulk powers will need to be authorised by a Secretary of State and approved by a judicial commissioner, which means we can be satisfied that those powers will be issued only where it is both necessary and proportionate to do so. Each warrant must be clearly justified and balance intrusions into privacy against the expected intelligence benefits.

There is so much to say, but time is limited. The upshot is that this Bill is not the finished article, but it forms the basis of a strong piece of law. I believe it can have as positive an impact as the Police and Criminal Evidence Act 1984, by updating and clarifying the law for those having to apply the relevant powers, while strengthening safeguards for those who are subject to them. If we get the detail right, I believe this Bill has the potential to become world-leading legislation. We should give this Bill a Second Reading.