Investigatory Powers Bill

Alistair Carmichael Excerpts

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Simon Hoare]

All I will say to the hon. and learned Lady, once she has calmed down from her faux anxiety, is that Compton Mackenzie must be turning in his grave, because there is a significant dereliction of duty here. One would think—this may be the case in Scotland, and if so, SNP Members must forgive my ignorance—that there is no organised crime, and that there are no paedophiles, people traffickers, terrorists and drug dealers. One would think there are no people who are trying to do us ill. Perhaps, to use the analogy of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), it is the view of the SNP that a quick rifle through a mail sack and the identification of a particular hand in a quill pen will be sufficient to interrupt some terrible deed. That may very well be, and SNP Members may be right that that will satisfy their constituents. I can tell them that it will not satisfy mine. My constituents look for the Government of the day, irrespective of the stripe, to carry out with seriousness and with democratic accountability the first duty of the state, which is to protect the realm and its citizens.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I hope that the hon. Gentleman will accept that I hold no brief for the SNP—I struggle on many days to hold any affection for it. But may I offer him the opportunity to reflect on what he has said about the duty of the SNP Members and others of us, including a substantial number on his Benches? None of us would seek to undermine the work of the security services, but it is our duty to ensure that the powers given to them by this House are necessary and proportionate. That is the work in which we are engaged here, and if we are talking about a breach of duty, it would be a breach of our duty if we were not to do that.

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. The right hon. Gentleman wishes to catch my eye very shortly, and of course I want to hear him speak, but I do not want to hear the speech twice. We need short interventions.

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[Simon Hoare]

I oppose the amendments because they would delete very significant powers that are required. I have—as I believe the Government have—confidence in our services to deploy in an accountable way. If the hon. Member for Glasgow North East presses her amendment to a Division, I will oppose her, even if no one else does. I am content with the arguments deployed by Ministers that those bulk powers are required. We cannot dodge our responsibilities on this. We may find that it infringes and impinges on the sacred flame of civil liberties but, to keep our country safe, so be it.

[Mr Carmichael]

I can only regret the tone of the remarks of the hon. Member for North Dorset (Simon Hoare). Had he said anything about the content of the Bill or the amendment, I might have regretted that as well.

There are a number of matters on which I wish to touch today. I should like to speak first of all in relation to the review, which has formed so much of today’s debate. I very much welcome the appointment of David Anderson, QC. He commands respect and confidence in all parts of the House. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer) said earlier, it is significant and important that, first of all, he has a remit that looks at the necessity of these provisions and also that he has been able to select for himself the team with which he will be working.

I very much hope that the report will be produced in time for the Bill to be given the benefit of it when it is considered in the other place. I say to the Minister that if it is a question of a week or two here or there, notwithstanding the deadlines to which we are all working, it would be proper for the Government to take the view that it is best to get this report right rather than to get it out quickly. For my part, I am disinclined to think that David Anderson would have taken on this job if he were not able to do it in the time that is allowed to him, but, as we all know with these matters, sometimes the unexpected happens and sometimes it is not always easy to get to the truth of things. I do hope that there will be a degree of flexibility among the Government’s business managers, not least if we need a Government day to debate the report, so that the House has its voice heard.

[Mr John Hayes]

I will, if I may, suggest to the right hon. Gentleman, whom I worked with in government and whom I know very well, that the scope of the report should be a matter for David Anderson. For example, if he were to want to take into account the experience of other countries—this is something that the right hon. Gentleman and the SNP spokesperson called for—that would be a matter for David Anderson. We are not attempting to tie his hands in any way. As the right hon. Gentleman knows, it is my view that we need to get this review completed, so that we do not pass something into legislation without the information that emanates from it.

[Mr Carmichael]

I am grateful to the Minister for that. We are now best served by allowing Mr Anderson to get on and do the job that we have given him. I merely say in passing that it would have been better if we had given him that job some time ago, so that this House might have had the benefit of his conclusions when debating this whole matter. None the less, I welcome the conversion of the Government, however late in the day it may have come, to the need and to the acceptance of what even the Labour party has said, which is that the operational case for the extent of the bulk powers that the Government have sought to introduce in this Bill has not yet been made. The operational case that they have published has been vague, to be kind to it, and it has certainly been lacking in any persuasiveness.

We will look very closely at David Anderson’s conclusion with regard to the necessity of these powers, because that should have been the first test that was set and that was required to be met. I take very little issue with the right hon. and learned Member for Beaconsfield (Mr Grieve), or indeed the hon. and learned Member for Holborn and St Pancras, when they talk about the protections that they think should be built into the Bill. Protections are necessary only if the powers are first judged to be necessary, which comes to the very heart of the points made by the hon. Member for North Dorset. The Bill has very much been a work in progress and I wonder whether we would have had the 104 Government amendments we had yesterday and the 20 that we have today, never mind those tabled by the Intelligence and Security Committee, by those on the Opposition Front Bench and by the Scottish National party, if the House had taken the approach to the Bill and its scrutiny that was being urged on us a few minutes ago.

On the question of bulk personal datasets, I share the substantial concerns that have already been expressed. That brings me back to the objection that I have already spoken about—to the operational case. That is another aspect of the Bill that the Government have failed to explain. The operational case is perhaps even more opaque than anything else in the Bill. Although the abuses—let us use that term—outlined by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and acknowledged by the right hon. and learned Member for Beaconsfield might be at the lower end of the scale, I have a strong suspicion that it was because they were at the lower end of the scale that they came into the public domain in the first place. When we are dealing with something that strikes in such a fundamental way at the relationship between the citizen and the state, there is, frankly, no such thing as a trivial abuse. Any abuse is serious, any abuse is to be taken seriously, and that is why I thought that the hon. and learned Lady was right to bring them to the House’s attention.

[Joanna Cherry]

I thank the right hon. Gentleman for his generous and measured comments earlier about the SNP’s role in the Bill. To pick up on his point, is not the problem that once the warrants have allowed bulk data to be scooped up there is no legal regulation of how it is analysed, which is why these individuals within the security services were able to break the rules—there are no warrants; it is about internal regulation?

[Mr Carmichael]

The hon. and learned Lady is absolutely right, and I draw on my own experience when I say that in giving power to public authority in this way it is important that we should be as specific and prescribed as possible.

To draw on my experience, I recall the passage of the Criminal Procedure (Scotland) Act 1995. At that time, I was a procurator fiscal depute in Aberdeen and one of the innovations introduced in the Act was the ability of a prosecutor to comment on previous convictions before a jury in Scotland. I have no doubt that at that time all sorts of undertakings were given at the Dispatch Box, but when we as prosecutors—and, I like to think, fairly measured prosecutors in the public interest—saw that provision, the discussion did not centre around how the undertakings had been given at the Dispatch Box but how we could use it, its extent, where the boundaries would lie and what would constitute a step over the line and a step just inside it. There were always some in the office who were quite keen for the line to be a little bit elastic.

That is a much more trivial example, because of course it was a measure for which there would have been obvious and immediate judicial scrutiny. If any depute were to overstep the mark in court, it would be immediately obvious and they would be pulled up on it. There will not be the same scrutiny, there is not the same oversight and we ask a great deal of those who serve in our security services if we give them such a wide range of powers with so little definition. The lack of definition, the lack of proportionality and the lack of necessity underpin my concerns, which, I think, are shared in other parts of the House.

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[Andy Burnham]

I made a similar point yesterday, when I said that it would have been helpful had we made more progress on these issues, and perhaps I can push the Minister on this, because I know he is meeting the Law Society and the Bar Council later this week.

The truth is that this raises quite complex issues. With all three professions, a slightly different set of issues arises, and we should not rush to legislate. We should move on the basis that we know what we are trying to achieve, which is to protect the ability of the public to go to an MP without fearing that there is any compromise on a private discussion. We want legal privilege—the privilege that belongs to the client—to be protected. We also want journalists to be able to protect their sources, as they want to do. If we work with the Government on that basis in good faith, I believe that we will be able to come to the right position.

[Mr Alistair Carmichael]

May I, through the right hon. Gentleman, tell the Minister that, when he says he will speak to people in the House and others, those others really must include the National Union of Journalists?

[Mr Hayes]

indicated assent.

[The Solicitor General]

indicated assent.

[Mr Carmichael]

Those are the people who will be better qualified than anyone else to define what a journalist is, and they do have something of a pedigree—going back to 1936—in terms of the definitions.

[Andy Burnham]

The right hon. Gentleman makes an important point, which I saw was accepted on the Government Front Bench. He has tabled a detailed amendment on this issue, and he is right to do so and to press the Government on this. All of us have to apply our minds to getting these definitions right for all three professions. There is still an open question, as we discussed yesterday, about Members of Parliament and the right level of scrutiny for any warrant against them, but there is equally more work to do on other fronts.

We should not pass a Bill that weakens these professions—as I said yesterday, this is not about preserving the special status of the individuals who work in them, but about protecting the public and their ability to raise issues through those individuals.

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[Andy Burnham]

I will certainly take the right hon. and learned Gentleman’s points into account. He is making the same case as we are in our amendments. To be clear, those amendments would create a general seriousness test for all communications data collection, which would have to be passed before any of those data could be released. The test created by my hon. and learned Friend the Member for Holborn and St Pancras in amendment 292 relates to offences for which the sentence is imprisonment for more than six months. We felt that that was proportionate. It begins to meet some of the right hon. and learned Gentleman’s concerns, as it would knock out some of the lower-level offences he has just described.

Given what the Minister has said, I do not intend to press that amendment to a vote, but it is the bottom line from where we start. On top of the general six months test for all communications data, we want a higher threshold for the more personal data in an internet connection record. I am glad that the right hon. and learned Gentleman intervened because we have now made that explicitly clear to the House.

I turn now to the independent review of the operational case for bulk powers, which allows me to finish on a more positive note. All the bulk powers in the Bill—bulk interception, bulk equipment interference, bulk acquisition, bulk personal datasets—give rise to privacy concerns because of the more indiscriminate way in which they might be used. That is why it is important that they are granted on the basis of what is strictly needed rather than what it would be helpful to have, a point made by the Intelligence and Security Committee in its extremely valuable report. The Joint Committee on the draft Bill also recommended that there should be an independent review of the bulk powers. It was a point upon which I laid great emphasis in my letter to the Home Secretary, and my hon. and learned Friend the Member for Holborn and St Pancras has done the same throughout the passage of the Bill.

We are extremely pleased that the Government have agreed to that request. We agree that David Anderson, the independent reviewer, is the right person to lead the review. I understand that, following correspondence between my hon. and learned Friend and the Security Minister, terms of reference have now been agreed and the review can start in earnest. It will be concluded in time to inform proceedings in the other place. Crucially, it will consider the necessity of the powers and whether the same result could have been achieved through alternative methods. It will also have a balance of security expertise and human rights expertise. This is a significant move by the Government and will ultimately help build public trust in the Bill.

To hark back briefly to the debate on the last group of amendments, it is too early to say what we will do on the back of the review. We will have to see what it concludes, but our working assumption is that it will be incumbent on Members on all sides of the House to respond to the review and if necessary reassess their position on the back of it.

[Mr Alistair Carmichael]

Does the right hon. Gentleman share my concern that at the Dispatch Box the Security Minister initially said the review would focus on necessity, but when winding up the last debate would not concede in any way, shape or form that the powers were not necessary? Does that not raise some concern in the right hon. Gentleman’s mind?

[Andy Burnham]

There is an exchange of letters between the Security Minister and my hon. and learned Friend the Member for Holborn and St Pancras, which I hope is in the public domain, and which I believe allays the fears of the right hon. Member for Orkney and Shetland (Mr Carmichael). To be clear, it was a sticking point for Labour that the review had to consider necessity and not just utility. That is enshrined in the terms of reference, so I hope I can reassure him on that point.

Clearly, there is further to go on journalistic material and internet connection records, although it appears from what the Minister has said this afternoon that we are heading in the right direction. I stress again that progress on the ICR points that I have made are a personal red line.

That said, I thank the Home Secretary, the Solicitor General and the Security Minister for the constructive way in which they have approached our discussions. Because of the consensus we have been able to find, the legislation is more likely to succeed and to stand the test of time.

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In response to this point, the Solicitor General pointed out that the provision was not remotely like the 2009 directive—which, incidentally, the Minister voted against—because the retained data would not be in Government hands and that the arm’s-length approach was a key difference.

[Mr Alistair Carmichael]

The point about the arm’s- length retention gets to the heart of the matter. The concerns expressed by the Opposition Front-Bench team all surround the question of a threshold, but the threshold will never be of any significance to those out there waiting to hack into this information, as we have seen only too clearly with the recent experience of TalkTalk.

[Gavin Newlands]

I could not agree more with the right hon. Gentleman. I will come to that point shortly.

The question of who retains the information is secondary to the fact that it will be retained and accessible in the first place. The Government have, true to form, merely contracted out data retention to the private sector. Many people share unease about the security of this information. As we have seen recently, private providers are susceptible to sophisticated hacking operations. The consequences, should this information get into criminal hands, are deeply worrying. Indeed, the Joint Committee on the Draft Communications Data Bill shared similar concerns when it said that storing weblog data, however securely, carried the risk that it might be hacked into or fall accidently into the wrong hands.

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[Mr Speaker]

It depends on how many Divisions there are. As the hon. Gentleman will know, only one hour is allocated for Third Reading, and votes will eat into that, so it is a function of the demand for votes. I am sorry that I cannot give him a more precise answer, but I always have his interests uppermost in my mind, and I will try to accommodate him and others.

[Mr Alistair Carmichael]

Further to that point of order, Mr Speaker. The House agreed a timetable motion yesterday, since when substantial amendments and concessions have been made by those on the Treasury Bench. The Bill is very different now. Can you confirm for me that it would still be within the Government’s competence to bring forward an amended timetable that would allow us to have Third Reading on another day?

[Mr Speaker]

The answer to the right hon. Gentleman, who has considerable experience in these matters, not least from when he was on the other side of the fence, as a very senior Whip, is that it is always open to the Government to table an alternative programme motion. That is not a matter for the Chair. The amendments were, of course, all on the paper at the point at which the House agreed the programme motion.

I ought just to say for the avoidance of doubt that the hon. Gentleman who has the floor is not in any way being criticised; I simply wanted to make him aware of the level of demand. I think we ought now to proceed. I would happily sit here all night for colleagues to debate these matters, but I rather doubt there would be the same enthusiasm among Government Whips for such a proposition.

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[Mr Speaker]

Order. In fact four colleagues rather than three wish to speak.

[Mr Alistair Carmichael]

I rise to speak to the amendments standing in my name, particularly amendment 3. The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) said that the amendments tabled by the SNP that sought to remove internet connection records from the Bill had not been selected. I notice that he and the hon. and learned Member for Edinburgh South West (Joanna Cherry) have also added their names to amendment 3. It was not my intention at the start of this debate, but I have heard so little by way of comfort from the Government Front-Bench team that I intend to press amendment 3 to a vote. It is surely unacceptable, at this stage in proceedings, that we still have no proper definition of what exactly is an internet connection record. Others have touched on that during the course of our debates.

It is 15 years to the day since I was elected at the 2001 general election. I have seen a few things in this House in that time, and one thing that I have learned to recognise is a well-rehearsed line exchanged between the two Front-Bench teams. I think we saw that when the shadow Home Secretary was getting his assurances from the Minister for Security. I have to say that he has got assurances which, frankly, miss the whole point. The assurances on threshold, for example, do absolutely nothing to address the problems that are inherent in the riskiness of retaining such data in the first place. I cannot improve on the definition or the expression that was used by the Joint Committee when it reported on the draft Bill. It said that the collection of internet connection records would be a

“honeypot for casual hackers, blackmailers, criminals large and small from around the world, and foreign states.”

David Anderson QC described the expanded data collection by internet service providers as “overstated and misunderstood”—to the point and understated. There is no other “Five Eyes” country in which operators have been forced, or are being forced, to retain similar internet connection data. That surely tells us all that we need to know. The case has not been made. It is always open to the Government to come back on some future occasion to make a case and to put these provisions in another Bill. They have not made the case, and the provisions should not be in this Bill.

[James Berry (Kingston and Surbiton) (Con)]

That was a very disappointing reaction from the right hon. Member for Orkney and Shetland (Mr Carmichael) to what I thought has been the very constructive way in which the right hon. Member for Leigh (Andy Burnham) has dealt with the Government both today and yesterday.

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[Mr Alistair Carmichael]

I recall that the first Public Bill Committee on which I served was on the Proceeds of Crime Act 2002, when the right hon. and learned Member for Beaconsfield (Mr Grieve) led for the Conservatives. I seem to recall that he made the same point about the Order Paper in 2001. Despite the modernisation that we have seen over the past 15 years, it remains a piece of work that is outstanding.

My party voted against this Bill on Second Reading, and it is a matter of profound regret that I will be doing the same again tonight on Third Reading. Notwithstanding the progress that has been made, the Bill is still not yet fit for sending to the other place.

The right hon. Member for Leigh (Andy Burnham) reminded us that it was 15 years ago today that he and I were elected to this House. I have seen a lot happen in that time, and I like to think that I have learned a thing or two, one of which is that when Government Ministers and Government Back Benchers shower the Opposition Front Bench with praise, it is time to head for the hills because we are going to do something that is seriously bad and dangerous.

The first time that the right hon. Gentleman and I saw that in this House was in the run-up to the Iraq war in 2003 when the Conservatives, then in opposition, said that they would take the Government position on trust. Later on, they said, “Of course, if we had known what we know now, we would not have supported them at the time.” They could not have known then what they knew later, because they never asked the questions. It is not the job of the Opposition to take the Government’s views on trust, but that is what they are doing. I do not question their principle, but I am afraid I cannot share their judgment.

[Andy Burnham]

The right hon. Gentleman seems to be advocating an argument that we can only achieve progress by being oppositional or party political. Surely there are occasions when we can do more by working across the House. We have shown that on this issue and on others, such as Hillsborough and other past injustices.

[Mr Carmichael]

I do not need to take any lessons about working with other parties from the right hon. Gentleman. I did that for five years in a coalition Government when the Labour Front Bench could do nothing but tribally oppose.

[Mr George Howarth (Knowsley) (Lab)]

Will the right hon. Gentleman give way?

[Mr Carmichael]

No, I am sorry. We have a shortage of time, so I am not taking any more interventions—[Interruption.] It will not be worth listening to; will the right hon. Gentleman just sit down, please?

We are told that a review is coming from David Anderson QC. We anticipate further amendments regarding the definition of internet connection records. We still await further detail on how the thorny issues of legal privilege and journalistic sources will be protected. That all adds up to a picture of massive doubt, and massive questions remain about the efficacy and necessity of the powers that the Government are bringing forward tonight. It would be an abdication of our responsibility as Opposition MPs to vote for it, and I will not be party to that abdication.

[Victoria Atkins]

It has been my privilege to serve on the Joint Committee on Human Rights and the Bill Committee. I want to challenge gently the tone adopted just then by the right hon. Member for Orkney and Shetland (Mr Carmichael), because I felt during the Joint Committee and in Committee that the people whom the Bill seeks to protect and those who sadly fell on 7/7 and in terrorist atrocities since were haunting me and many other members of those Committees.

[Mr Carmichael]

Will the hon. Lady give way?

[Victoria Atkins]

No, I am going to finish this point. What is more, I met the police officers and members of the security services who hold our safety in their hands, and they do that for reasons of good faith, not bad faith. I regret the tone that has been taken, but I am conscious of the time—

[Mr Carmichael]

rose—

[Victoria Atkins]

I am not going to give way. The Joint Committee heard from 59 witnesses in 22 public panels. We received 148 written submissions, amounting to 1,500 pages of evidence. We visited the Metropolitan police and GCHQ, and we made 87 recommendations, more than two thirds of which have been accepted by the Home Office.

[Mr Carmichael]

Will the hon. Lady give way?

[Victoria Atkins]

No, thank you. The Bill Committee considered nearly 1,000 amendments, and in it the Government were led with style and eloquence by my right hon. Friend the Minister for Security and my hon. and learned Friend the Solicitor General. It was a pleasure to hear the forensic examination of the Bill by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and contributions from the hon. and learned Member for Edinburgh South West (Joanna Cherry). The scrutiny, care, considered argument and good will of those involved in the past seven months has improved this Bill. I have absolutely no doubt that it will help the security services, the police and other law enforcement agencies to protect us and to prosecute those who mean us harm. It is world-leading legislation and I commend it to the House.

[Dr Murrison]

I certainly rise to support this measure, which has improved enormously during its passage. I cannot think of a measure in my 15 years here that has been more thoroughly scrutinised than this one. Our constituents are going to be very pleased with what we have been doing over the past weeks and months. I have to say to the right hon. Member for Orkney and Shetland (Mr Carmichael), whom I respect very much, that one thing our constituents dislike most about this place is the perpetual protest in opposition, which we hear too often, particularly from his party. It does him no good. This Bill is—

[Mr Carmichael]

Will the hon. Gentleman give way?

[Dr Murrison]

Certainly not. This Bill has been characterised by consensus, and I have been heartened by the constructive attitude that the Labour Front Benchers have taken to this measure, moving from a position of abstention on Second Reading to one of support now. It does them a great deal of credit and has made this Bill very much better. The double lock was a turning point in this measure as far as I am concerned, but may I also say that the privacy clause, new clause 5, is essential for many of us? The Home Secretary pointed that out. We have not had an opportunity to debate it very much today, but new clause 14, on health matters, has also been particularly important for a number of us who had concerns.

Clause 222 has not been debated at great length, but again it is vital because it allows us in five years’ time to come back to this measure to see what more needs to be done and what might be removed. That is particularly relevant in the context of ICRs. We have heard that one outstanding issue relates to the definition and use of ICRs, and I know that the other place will debate that at some length. My right hon. Friend the Minister for Security has referred to it and he is right to do so. I firmly believe that we will want to come back to it in any event in five years’ time, as technology will have changed so much in that period.

In summary, I very much welcome this measure—it is absolutely right. I am convinced that that overwhelming majority of our constituents will be pleased with the assiduity we have applied to this measure and, in particular, with the consensual nature of our debate. It is a great measure. It will give our constituents the protection that they undoubtedly need, while safeguarding their historic liberties.