Reports into Investigatory Powers

Andrew Murrison Excerpts

Thursday 25th June 2015 Commons Chamber

[Yvette Cooper]

I thank the Home Secretary for that reassurance that the Government agree that the old draft Bill was too wide ranging. We look forward to the replacement proposals and hope they will meet the assessment test set out by David Anderson, whose report is pretty comprehensive and well judged on these matters.

I also warmly welcome David Anderson’s recommendations for a fundamental overhaul of the commissioner system and the establishment of a new body, the independent surveillance and intelligence commission. The current commissioner system, although undoubtedly staffed by excellent people who have taken their roles forward, is too low profile and not substantial enough in performing a vital oversight role. It is hard for the public to assess where oversight properly lies. When one considers that we regulate our TV channels in a more high-profile and systematic way than our intelligence agencies, it is clear that reform is needed.

The new body would have supervisory responsibility and aim to build public trust. I would like it also to have a role in working with the Home Secretary on a suitable process for transparency, where that is possible in line with operational requirements, about both the law and our country’s capability. David Anderson’s report calls for greater public avowal and transparency about capabilities and legal powers. While everyone understands that many national security operations need to be secret to be effective, I know the Home Secretary will consider that recommendation closely, because sufficient transparency is of course needed if we in Parliament are to be able to take responsible decisions and get the legislation right.

The report recommends transforming the system of authorisation for interception warrants. The proposals on judicial authorisation are among the most significant reforms to the framework that David Anderson proposes. There is precedent: a system of judicial approval by commissioners exists for the police in relation to property interference, intrusive surveillance and long-term undercover operations. Also, as the report notes, the UK is an outlier among the “Five Eyes” states—the others are Australia, Canada, New Zealand and the USA—in not having prior judicial authorisation of interceptions of communications.

Importantly for the safety and security of our country, such a provision could go some way to solving one of the most significant challenges our agencies face: getting co-operation from communications companies based in the United States. In his report, David Anderson states:

“One major company went so far as to suggest that if the UK introduced judicial authorisation, more cooperation would be forthcoming, though I was not left with the impression that this was a universal view.”

He adds that

“US companies…find it difficult to understand why they should honour a warrant signed by the Secretary of State”

when the US has a system of judicial authorisation of warrants. So there are pragmatic considerations as well as constitutional considerations for us in determining what impact increasing judicial authorisation might have on that greater co-operation involving overseas companies.

Of course the detail must be right and reforms should not adversely affect the relationship between the Executive and the judiciary in relation to other aspects of Government powers. They should also recognise the importance of the Home Secretary’s role in determining what the threats are to national security, rather than leave such an important task to the judiciary. However, it should be possible to make those reforms, and I believe that now is the right time to introduce judicial authorisation into the process. Clearly, there are different ways of doing it—for example, it would be possible to have different frameworks for different kinds of warrant. David Anderson recognises that there would be differences in relation to sensitive missions that affect other countries and our relationships with them. Clearly, rather than leave such cases to a purely judicial process, such cases would require decisions to be made by the Foreign Secretary, who is accountable to Parliament for those sensitive relationships with other Governments.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

How does the right hon. Lady reconcile the need to take account of the wider political construct with the duty of the judiciary to act according to the law? Surely she is making a powerful argument for the status quo.

[Yvette Cooper]

No, I am not. I am part way through an argument that there are different kinds of warrant and different circumstances. In cases involving foreign affairs, where sensitive relationships with other Governments may be at stake, the Executive clearly have an important role to play; they cannot be seen simply as judicial matters. However, there are other kinds of warrant—for example, intercept warrants for the purposes of tackling serious and organised crime, where if the action was not intercept, but was instead knocking down someone’s door and breaking into their home, authorisation would be an entirely judicial process. There are significant questions about why intercept in the interests of pursuing serious and organised crime should have no judicial authorisation, whereas knocking down somebody’s door should have judicial authorisation.

That is why I think there is a strong case for introducing judicial authorisation to provide a clearer system of separation of Executive and judiciary and to introduce clearer checks and balances into the process. It does have to be done in the right way and there will be different considerations around crime and national security and foreign affairs, but I believe it is possible because other countries manage it. If we were the only country in the “Five Eyes” that did not have a process of judicial authorisation, even though we have similar intercept arrangements, that would pose a big question for us. Those who simply defend the status quo need to explain why they think the arrangements in all those other countries are inadequate and worse than ours, given the added legitimacy that some judicial authorisation processes should bring.

I recognise the complexity here; that is why it is wise that we hold this debate now, in advance of the Government making their final decisions on the issue and setting out their proposals. It is also wise that we have a period of consultation on the draft legislation, so that people can table amendments and have these debates. However, I do not see why judicial authorisation need threaten or jeopardise the work of the agencies—quite the reverse. If it is a way to provide greater legitimacy, and support from overseas, for this work, it could add strongly to the process, and to agencies’ work.

On the legislative process, I welcome the Home Secretary’s proposal for a period of proper reflection and discussion on the detail before final votes are taken in Parliament. That is the right approach. We are keen to continue discussions with her on this subject, and I welcome the briefing that she provided for me to enable us to do that. When the Snowden leaks first appeared in the media, there was a sense that Parliament was not debating these issues, that the Government were not responding, and that other countries were having a more informed and up-to-date debate about the response and the processes.

--- Later in debate ---

[Dr Andrew Murrison (South West Wiltshire) (Con)]

I start by paying tribute to our security services, whose work I have seen at first hand over many years. They are superb professionals, who, unspoken and silently, keep us safe every day on the streets of Britain in a way that we want and is emulated across the world.

I pay tribute to David Anderson’s report. From its very wisely chosen title to annexe 18, 373 pages later, it is truly magisterial. If I had a criticism, it would be that there are too many acronyms, but stand fast in my view that it is a truly superb work. The Intelligence and Security Committee report, too, in its own way, is also worthy of very close attention and provides a backdrop for the consideration that this House will be engaged in as we run up to autumn and the much anticipated consideration of the draft legislation.

We heard today, from my right hon. Friend the Member for Cities of London and Westminster (Mark Field), about his daughter’s ballet. We have heard about the shadow Home Secretary’s child’s graduation. A feature of this point in the academic year is that we are concerned about our children and their achievements. At the weekend, I had the very great pleasure of being at my daughters’ sports day. What impressed me most, apart from the athletic prowess of my daughters, was the camera overhead, monitoring this business, with the full consent of the school, the children and—I think probably implicitly—the parents for posterity. At first glance, it looked a fairly benign exercise, but I do not think that I was the only one who felt slightly uneasy. In my recollection, it was the first time I had come across this particular piece of technology—a great cumbersome, burdensome thing, very obvious and very noisy. In 10 years’ time, it will be replaced—I have no doubt—by a thing the size of a small insect, and at that point, it will become far more sinister. If I had one plea, it would be this: as we consider the draft legislation towards the end of this year, we must make sure that we future-proof the Bill and the Act that eventually transpires. That measure must be good for many years to come, and at a time when we will be faced with technology that most of us can only imagine at the moment.

My interest in this matter stems from my experience as the Minister for international security strategy and a Minister in the Northern Ireland Office, and as a Member of Parliament who represents a large number of people who are engaged, in one way or another, in the security services. Of course, all of us in this place are intimately involved with the product of the security services, since all our constituents are affected by it in one way or another.

I am very impressed by the National Crime Agency’s statistics on what it has done as a direct result of material that has been intercepted: the 750 kg of heroin and 2,000 kg of cocaine that were intercepted in 2012-14; the 2,200 arrests; the 140 firearms that were intercepted; and the £20 million of illicit loot that was seized. I note Operation Notarise and the resulting 600 arrests for suspected child abuse. All that represents a great well of human misery. Such things will not be dealt with unless we invest in our security services the powers they need to intercept material in a fast-evolving electronic space.

Clearly, the balance needs to be struck between our need to keep people safe in a complex world and privacy; between the extremes of Big Brother and the anarchy and lawlessness of laissez-faire. My right hon. Friend the Home Secretary touched on that in her remarks. To be honest, I do not know where on that Likert scale between Big Brother and laissez-faire we need to pitch our legislation. That is a matter for debate in the months ahead.

I was alarmed that the Intelligence and Security Committee report from earlier this year reported that organisations such as Big Brother Watch, Justice, Liberty and Rights Watch UK felt that the security environment was having a “chilling effect” on society. I do not believe that that is the case. I think that my constituents would be “chilled”, however, if we were not able to interdict and intercept the sorts of villains who would do them down and create havoc on the streets of this country. My constituents would be “chilled” in the event that we accepted, as those organisations appear to do, atrocities on the streets of London like the murder of Fusilier Lee Rigby. That is the consequence of not giving our security services the powers that that they need. It is as straight- forward as that, notwithstanding my remarks about balance.

There are many matters to be considered in the autumn. I welcome the opportunity this House will have for pre-legislative scrutiny. In the short time available to me, I would like to touch on one or two of those matters. Right hon. and hon. Members have commented on the need for public awareness and education to avoid confusion. I do not agree with the hon. and learned Member for Edinburgh South West (Joanna Cherry) in so far as she suggested that there was widespread concern about snooping. There is not much evidence to sustain that. However, it is our duty, as we approach this legislation, to do our best to educate the people in whose name we act to ensure that they have the sort of understanding that is needed in a civil society to have confidence that the powers invested in the security services are appropriate, necessary, proportionate and legal. It is the job of Members of this House and, if I may say so ever so gently, the re-formed Intelligence and Security Committee to inculcate that understanding among the public, as far as is possible.

Snooping is a complete misnomer and, as we have heard this afternoon, there is nothing to sustain that description. That does not mean to say that we should not put in place the mechanisms that are necessary to ensure that our security services do not, wittingly or unwittingly, abuse the position of trust in which they are invested.

We need to be conscious that technology is proceeding apace. Quantum computing, probably in the next 10 years, will provide a double-edged sword, because it will increase the ability to encrypt data and thus the ability of villains to do bad stuff, but it will also improve the ability of our security services to survey bulk data, which brings significant implications for the legislation that we will consider in the autumn. As well as the requirements that the collection of material be necessary, proportionate and legal, the fourth hurdle is the impossibility of surveying the great bulk of the data. It is simply not possible for the security services to snoop in the way that has been suggested, because there is so much data and the technology does not exist to spy or snoop on people or invade their personal liberty in the way that some people seem to think is routinely possible. That may change, however, and we must ensure that the legislation we consider in the autumn is up to the task of dealing with this stuff as it evolves, as it surely will, over the next decade.

There are various things that we can do to mitigate that risk. We can insist on a time limit for the retention of data. We can be wary of allowing internet service providers to hold bulk data that are capable of being mined—so-called “big data”. I am persuaded that there is a distinct possibility that, in the near future, agencies will be able to profile people and predict not what they have done, but what they might do in the future on the basis of the profile that they have built up. That is extremely sinister.

Although it would be illegal to do that as things stand, if we could no longer rely on the fourth hurdle that I mentioned, namely the physical inability to tap the data because of their extent, it may just be possible with quantum computing and the changes in technology over the coming years, providing a sort of electronic version of Dixon of Dock Green that eyes up wrong ‘uns who might get involved in criminality or worse in the future. We need to future-proof the legislation to avoid that.

I am aware that other Members want to speak, so let me say very quickly that we need to be careful about the status of communications data—the who, where and when. Given the increasing importance of the data, the sophistication of them and the profiling that is capable of being built up on the basis of them, we need to look at the status of the designated person. I am not convinced that it is proper to vest those powers in a middle-grade person. We need to look at whether that needs to be changed in order to preserve the liberties that we have discussed today.

I want to comment briefly on who signs warrants for intrusive activities, because that is an important part of the material that we are discussing. Sir David Omand and the Home Secretary are quite clear on that point and I agree with them because of my ministerial experience, although I was at a far lower level than my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I am less persuaded—indeed, my right hon. and learned Friend was not persuaded—by the immediacy argument. That seems to me to be superficial and easily dealt with. I am persuaded about the need to consider the wider political context. That is an important point. I am also persuaded on the point about accountability. We in this place are elected to represent real people. Nobody ever put a cross by the name of a member of the judiciary.

[Mr Grieve]

The accountability argument is, without doubt, the most powerful argument for Ministers doing the warrantry process. Of course, there remains the problem that, due to the nature of the work, accountability to this House can sometimes be difficult to achieve in practice because, inevitably, it is not made public. That is a tension that the House will have to debate and resolve.

[Dr Murrison]

As one would expect, my right hon. and learned Friend puts his finger on it. The mechanism that my right hon. Friend the Member for Cities of London and Westminster described so well may be a remedy for that, but nevertheless my opinion is that the power has to remain with Ministers. We need to guard jealously the power vested in our politicians, who are accountable to the House and the people for the extraordinarily important things that they do.

At the heart of the matter lies an improvement in public understanding. In the months before December next year, we have to do everything we can to inculcate in the public a far better understanding of these sensitive issues. Each of us has a job to do in that respect, and I hope that the Intelligence and Security Committee will play its part in improving public understanding. Our civil society will be in a much better place as a result.

[Several hon. Members]

rose—