Reports into Investigatory Powers

Debate between Andrew Murrison and Yvette Cooper

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.