Investigatory Powers Bill

Andy Burnham Excerpts

Tuesday 15th March 2016 Commons Chamber

[Andy Burnham (Leigh) (Lab)]

I echo the condolences the Home Secretary rightly paid to the family of the police officer in Northern Ireland who lost his life in the course of his duties. They are in our thoughts today.

Let me start with the principle on which I think there is broad agreement. From the Government Benches to the Opposition Benches, from Liberty to the security services, there is a consensus that the country needs to update its laws in this crucial area, and that, if the police and security services are to be given new powers, there must be broad agreement that those powers be balanced with much stronger safeguards for the public than have previously existed. That, it seems to me, is a good platform from which to start.

The Bill is commonly seen through the prism of terrorism, but, as the Home Secretary said, it is about much more. The parents of a young child who had gone missing would want the police to have full and urgent access to all the information they need to bring them to safety. The Bill is about the ability to locate missing children or vulnerable adults. It is about reducing risks to children from predatory activities online. It is about preventing extremists of any kind creating fear and hatred in our communities, and it is about defending the liberties we all enjoy each and every day. Despite that, the truth is that we are some way from finding a consensus on the form the proposed legislation should take.

Three months after I was elected to this House, two planes flew into the World Trade Centre in New York, with highly traumatic consequences. In the 15 years since, we have all been engaged on a frantic search. What is the right balance between individual privacy and collective security in the digital age? As of yet, we have not managed to find it. The arguments in the previous Parliament over the forerunner to this Bill loom over our debate today, as does the current stand-off in the United States between Apple and the FBI. I would say that that is an unhelpful backdrop to this debate. It suggests that privacy and security concerns are irreconcilable: a question of either/or, choosing one over the other. I do not believe that is the case. We all share an interest in maximising both our individual privacy on the one hand and our collective security on the other. As a House of Commons, our goal should be to give our constituents both.

Finding that point of balance between the two should be our task over the next nine months. As the Home Secretary knows, I have offered to play a constructive part in achieving that. The simple fact is that Britain needs a new law in this area. Outright opposition, which some are proposing tonight, risks sinking the Bill and leaving the interim laws in place. To go along with that would be to abdicate our responsibility to the police, security services and, most importantly, the public. I am not prepared to do that. Just as importantly, it would leave the public with much weaker safeguards in place and I am not prepared to do that either.

[Mr Alan Mak (Havant) (Con)]

The shadow Home Secretary rightly says that the Bill will help us to fight terrorism. Will he join me in welcoming the new powers to fight cybercrime and financial crime, and will he join me in the Lobby tonight to vote for it?

[Andy Burnham]

I will not be joining the hon. Gentleman in the Lobby tonight, because I do not believe, as I will come on to explain, that the Bill is acceptable in its current form. As he will have heard me say in my opening remarks, I am in broad agreement with the Government’s objectives. I am not seeking to play politics with the Bill or to drag it down. I hope he will find some assurance in those words.

[Simon Hoare]

The right hon. Gentleman’s position, I am afraid, does not sound particularly persuasive or tenable, certainly to those outside this place. I just wonder what message it sends from his party, supposedly a Government in waiting. Instead of trying to thrash out the detail in Committee and on Report, by abstaining this evening the message will be very clear about what the Labour party actually thinks on this important issue.

[Andy Burnham]

I disagree entirely. As I said, we will not oppose the Bill because we will be responsible. I have recognised that the country needs a new law. I have also said, as I will come on to explain, that the Bill is not yet worthy of support. There are significant weaknesses in the Bill. I am sorry, but I am not prepared to go through the Lobby tonight and give the hon. Gentleman and his Government a blank cheque. I want to hold the Government to account. I want to see changes in the Bill to strengthen the Bill. When they listen, they will earn our support. That is entirely appropriate and responsible for an Opposition party to do.

The higher the consensus we can establish behind the Bill, the more we will create the right climate in the country for its introduction. As the Home Secretary said, it could create a template to be copied around the world, advancing the cause of human rights in the 21st century. The prize is great and that is why I am asking those on the Opposition Benches to work constructively towards it.

I repeat today that I do not think our mission is helped by misrepresentation. In my view, it is lazy to label the Bill as a snoopers charter or a plan for mass surveillance. In fact, it is worse than lazy: it is insulting to people who work in the police and in the security services. It implies that they choose to do the jobs they do because they are busybodies who like to spy on the public, rather than serve the public. I do not accept that characterisation of those people. It is unfair and it diminishes the difficult work they do to keep us safe.

[Suella Fernandes (Fareham) (Con)]

Does the right hon. Gentleman agree that the three independent reviewers all agree that our services categorically do not carry out mass surveillance and work within the boundaries of legislation?

[Andy Burnham]

I agree with the hon. Lady. The idea that they have the time to do that is fanciful. They are going straight to the people they need to be concerned about on our behalf, and that is why I reject the characterisation that is often placed on this proposed legislation.

[Catherine West (Hornsey and Wood Green) (Lab)]

What does my right hon. Friend make of the comments from the UN’s special rapporteur on privacy, Joseph Cannataci, who last week criticised the Bill, saying that authorising bulk interception would legitimise mass surveillance?

[Andy Burnham]

We need to explore the plans in detail. As I said, I do not accept that the Bill is a plan for mass surveillance, but we need to work hard over the next nine months to take those concerns away.

That said, there are well-founded concerns about the Bill. As we just heard, there is a genuine worry that providing for the accumulation of large amounts of personal data presents risks to people’s privacy and online security. More specifically, there is a worry that investigatory powers can be abused and have been abused in the past. In recent years, there have been revelations about how bereaved families, justice campaigners, environmental campaigners, journalists and trade unionists have been subject to inappropriate police investigation. What justification could there ever have been for the Metropolitan police to put the noble Baroness Lawrence and her family under surveillance? It has not been proven but I know that the Hillsborough families strongly suspect that the same was done to them.

[Mark Spencer (Sherwood) (Con)]

A lot of this debate has been about looking at people’s files, but does the right hon. Gentleman recognise that this should be about victims, including child victims, of crime? Has he had any representations from charities representing victims of crime and children’s charities?

[Andy Burnham]

I have had such representations, as the Government have, which is why I said the Bill was about much more than terrorism; it is about giving the police and the security services the tools they need to keep us safe in the 21st century. That is why I am not playing politics with the Bill or adopting a knee-jerk oppositionist approach; I am taking quite a careful and considered approach. That said, the Government have not yet done enough to earn my support.

[Steve Brine (Winchester) (Con)]

I have a lot of respect for the right hon. Gentleman, as he knows, and I would like to congratulate him on what he said about rejecting the conspiracy theories about this being a snoopers charter—it was deeply responsible of him to say that—but surely the Second Reading of a Bill is when we agree or disagree with the principle of a Bill. He has said he agrees with the principle of the Bill, and there are many behind him—perhaps not behind him in the Chamber right now, but they are in the Labour party—who agree with that. Surely, therefore, the opportunity today is to vote for the principle of the Bill on Second Reading, after which we can scrutinise it upstairs and back on the Floor of the House on Report. The right thing to do, therefore, is to support the Government tonight.

[Andy Burnham]

I will let the hon. Gentleman form his own view on the right parliamentary tactics for the Opposition, but I will be deciding that position, and I do not think I would be serving the public simply by giving the Government a blank cheque this evening. It is my job—[Interruption.] Wait a second!—to hold them to account on behalf of the public and to get the most I can to protect the public as best we can through the Bill. I am approaching that job, as part of Her Majesty’s Opposition, with the utmost seriousness.

Alongside bereaved families, there have been cases of journalists claiming that material was inappropriately seized from them, most recently in connection with the “plebgate” affair. Last year, a former senior police officer-turned-whistleblower came to an event in Parliament and said that he and a colleague had been involved in supplying information that led to the blacklisting of construction workers. I would refer those who claim that these fears are exaggerated to the biggest unresolved case of this kind—the 1972 national building workers’ strike and the convictions of 24 pickets, known as the Shrewsbury 24. It is widely believed that their prosecution was politically orchestrated, with the help of the police and security services.

[Steve Rotheram (Liverpool, Walton) (Lab)]

rose—

[Andy Burnham]

I give way to my hon. Friend, who knows a great deal about this matter and has championed those still fighting for justice.

[Steve Rotheram]

My right hon. Friend mentions the case of the Shrewsbury pickets, which is a stark example of the misuse and abuse of state power. Does he agree, therefore, that it is essential that the Bill contains the strongest possible safeguards specifically to ensure that great, historic injustices, such as the politically motivated incarceration of pickets in 1972, can never happen again?

[Andy Burnham]

My hon. Friend puts it very well, which is why fears about such legislation run deep on the Labour Benches. We know the truth about what happened, even though it is not widely known yet by the public, because we have seen the documents. I have here a memo from the security services sent at the time to a senior Foreign Office official—I am glad that the Foreign Secretary is winding up tonight, because this concerns his Department. It is headed “Secret” and talks about the preparation of a television programme that went out and the trial of the Shrewsbury pickets, and it says, at the top:

“We had a discreet but considerable hand in this programme”.

That is from the security services, so why would people on the Labour Benches not fear handing over more power to the police and security services without there being adequate safeguards?

[Mark Pritchard]

rose—

[Andy Burnham]

It happened close to the hon. Gentleman’s constituency, so I will give way.

[Mr Speaker]

Order. Just before the hon. Member for The Wrekin (Mark Pritchard) intervenes, I advise the House that, although everything is being done perfectly properly, and the Home Secretary and the right hon. Gentleman have been generous in giving way, 48 Back Benchers wish to contribute. Those who have or seek the Floor might wish to take account of that point. I call Mark Pritchard.

[Mark Pritchard]

I will be brief, Mr Speaker.

The shadow Home Secretary is quite right to point out that abuses, where they have taken place, are absolutely wrong, but does he also recognise that the Bill contains a new offence of misusing communications data, which is something he should welcome?

[Andy Burnham]

I will come to that very point, but these are not historical matters, because the convictions I just referred to still stand. I pay tribute to the Government, because they have a good record on this, but we need to go further to give the full truth about some of the darkest chapters in our country’s past, so that we can learn from them and then build the right safeguards into the Bill. The Bill will fail unless it entirely rules out the possibility that abuses of the kind I have mentioned could ever happen again. That is the clear test I am setting for the Bill.

That is also why I welcome the principle of the Bill. It leaves behind us the murky world of policing in the ‘70s, ’80s and ’90s, and holds out the possibility of creating a modern and open framework that makes our services more accountable while containing much improved safeguards for ordinary people. The Bill makes progress towards that goal, but it is far from there yet. It is clear that the Home Secretary has been in listening mode and responded to the reports of the three parliamentary Committees, but of the 122 recommendations in the three reports, the Government have reflected less than half in the revised Bill. She will need to be prepared to listen more and make further significant changes to the Bill if she is to achieve her goal of getting it on to the statute book by December.

I want to take the House through six specific concerns that we have with the Bill. The first is on privacy. As I said, people have a right to maximise their personal privacy, and given people’s worries about the misuse of personal data, the Intelligence and Security Committee was surely right to recommend that privacy considerations be at the heart of the Bill. A presumption of privacy would set the right context and provide the basis from which the exceptional powers are drawn. It would be the right foundation for the whole Bill: respect for privacy and clarity that any intrusions into it require serious justification. The Home Secretary said that privacy protection was hardwired into the Bill. I find it hard to accept that statement. I see the changes on this point as more cosmetic; they have not directly answered the Committee’s concerns. I therefore ask the Government to reflect further on this matter and to include a much stronger overarching privacy requirement, as recommended by the Committee, covering all the separate powers outlined in the Bill.

Also on privacy, we do not yet believe that the Government have gone far enough to protect the role of sensitive professions. The Committee noted that the safeguards for certain professions must be applied consistently across the Bill, no matter which investigatory power is being used to obtain the information, but it is hard to see how that is achieved at the moment. On MPs and other elected representatives, the Bill codifies the Wilson doctrine, but there is a question about why it stops short of requiring the Prime Minister to approve a warrant and requires only that he be consulted. The Bill could be strengthened in that regard. On legal privilege, the Law Society has said that, although it is pleased to see that the Government have acknowledged legal professional privilege, it needs more adequate protection, and it believes that that should be in the Bill, not just the codes that go with it.

[Mr David Davis]

On the Wilson doctrine, the wording of the Bill, as I understand it, relates to communications between Members of Parliament and constituents. That does not cover the whole Wilson doctrine, which covers communications between Members of Parliament and whistleblowers, between Members of Parliament and each other, and between Members of Parliament and campaigning organisations. They should all be protected. Does the right hon. Gentleman agree?

[Andy Burnham]

I do agree with the right hon. Gentleman. I was making the point that the provisions need to be strengthened in respect of prime ministerial approval, but also in the way that he describes to give our constituents that extra trust, so that if they come to speak to us in our surgeries, they can be sure that they are speaking to us and nobody else.

[Sir Edward Leigh]

If there is a matter of acute public concern and a whistleblower is making himself a real nuisance to the Government, and communicates that to his Member of Parliament, should one member of the Government, the Home Secretary, ultimately authorise it, with it then being referred to the Prime Minister, who might also be affected by the decision? He would effectively be judge in his own court and surely it is at least arguable that some other scrutiny should be involved.

[Mrs May]

The judge.

[Andy Burnham]

I think the Home Secretary has indicated that there would be, because her decision would be subject to the double lock, including judicial approval. My point is, why should the Prime Minister be only consulted by the Home Secretary as part of that process? It seems to me that there is a role for the Prime Minister finally to approve any such warrant, and I believe the Bill could be strengthened in that regard.

There is also the question of journalists. The National Union of Journalists believes that the Bill weakens existing provisions. Clause 68, which makes the only reference to journalists in the entire Bill, sets out a judicial process for the revelation of a source. Its concern is that journalists are wide open to other powers in the Bill. Given the degree of trust people need to raise concerns via the political, legal or media route, and given the importance of that to democracy, I think the Government need to do further work in this area to win the trust and support of those crucial professions.

Our second area of concern relates to the thresholds for use of the powers. The Bill creates a range of powers that vary in intrusiveness, from use of communications data and internet connection records at one end to intercept, equipment interference and bulk powers at the other end. There is a real concern that the thresholds for them are either too low or too vague.

Let us take internet connection records. The Home Secretary has previously described ICRs as “the modern equivalent” of the “itemised phone bill”, and the Government intend them to be made available on the same basis—that is, for the detection or prevention of any crime. The Joint Committee noted, however, that this is not a helpful description or comparison. ICRs will reveal much more about somebody than an itemised phone bill. They are closer to an itinerary, revealing places that people have visited.

The question for the House is this: is it acceptable for this level of personal information to be accessed in connection with any crime—antisocial behaviour or motoring offences, for instance? I do not believe it is, and I think a higher hurdle is needed. This is a critical point that the Government will need to answer if they are to secure wider public support for their Bill. People have legitimate fears that if ICRs become the common currency in law enforcement, much more information will be circulating about them, with the potential for it to be misused.

The Government need to tell us more about why they need this new power and they need to set a stricter test for its use—in connection with the prevention or detection of more serious crime or a serious incident such as a missing person, for instance. That is what I think the hurdle should be: serious crime rather than any crime, and I would welcome hearing the Home Secretary’s response on that point.

At the other end of the scale, the justification for using the most intrusive powers in the Bill is on grounds of “national security” or, as the Home Secretary said, “economic well-being”. While I understand the need for operational flexibility, there is a long-standing concern that those tests are far too broad. There is a feeling that “national security” has been used to cover a multitude of sins in the past. Let us remember that official papers from the domestic building workers’ strike in English market towns in 1972 are still being withheld on grounds of “national security”! How on earth could that possibly be justified?

[Tom Tugendhat]

The right hon. Gentleman is bringing up a point that relates to proportionality, but it strikes me as odd that he has rammed it home so strongly when the Bill itself mentions proportionality and the oversight of the Information Commissioner includes looking at proportionality. The right hon. Gentleman is going on and on about it, but it is actually in the Bill.

[Andy Burnham]

I do not believe it is. I put it to the hon. Gentleman that national security is a very broad term that is not defined in the Bill. The Joint Committee encouraged the Government to define it in order to give people greater security. As I have just said, activities have been carried out in the past under the banner of national security that I think he would struggle to justify as such.

The problem with the “economic well-being” test is that it potentially opens up a much wider range of activities to the most intrusive powers. The Bill states that matters of economic well-being must be only “relevant” to national security, not directly connected to it, as the Home Secretary seems to imply. This raises the issue of what extra activities the Government want to cover under this banner that are not covered by national security. A cyber-attack on the City of London has been mentioned, but surely that would already be covered by national security provisions.

Let me put two suggestions to the Home Secretary. First, I suggest that she accept the Joint Committee’s invitation to define “national security” more explicitly. Alongside terrorism and serious crime, it could include attacks on the country’s critical or commercial infrastructure. Secondly, if she were to do that, the economic well-being test could be dropped altogether. That would build reassurance among Opposition Members that there could be no targeting in future of law-abiding trades unionists, as we have seen happening in the past.

The third area of concern is with ICRs themselves—both their content and their use.

[Sir Edward Garnier (Harborough) (Con)]

Is the right hon. Gentleman seriously suggesting that a judicial commissioner would permit a politically motivated interception on a trade union?

[Andy Burnham]

I would gladly share with the right hon. and learned Gentleman some of the papers I have about the historic injustices that we have seen in this country—[Interruption.] But it is relevant, because those convictions still stand to this day. I said earlier—I do not know whether he was in his place—that revelations have been made that information supplied to blacklist people in the construction industry came from the police and the security services. I welcome the move to codify all this in law so that those abuses cannot happen again, but I hope that he will understand that Labour Members want to leave nothing to doubt. Why should the most intrusive warrants be used on the test of economic well-being? What does that mean? Are we not entitled to say that national security alone can justify intrusion on people’s privacy in that way?

[Mrs May]

I have been listening carefully to the response of the right hon. Gentleman to my right hon. and learned Friend the Member for Harborough (Sir Edward Garnier). Let me press him on the point that my right hon. and learned Friend raised, because it is very important. We are inserting the judicial authorisation of warrants. I did not think—I said this in my speech—that any Member should question the independence of the judiciary. It seems, however, that he is doing just that. Will he now confirm that he is not questioning that?

[Andy Burnham]

I am not doing that in any way, shape or form. It is wrong for the Home Secretary to stand there and imply that. What I am talking about is the grounds on which her Bill gives the police and the security services the ability to apply for warrants. [Interruption.] Conservative Members should listen: I am saying to the Home Secretary and to them that those grounds should be as tightly defined as possible, and I do not think it helps if she is proposing that they can be brought forward on grounds of “general economic well-being”. In the past, her party has taken a different view from ours, and this opens up a much wider range of potential activities that could be subject to the most intrusive warrants. That point is both fair and, if I may say so, well made.

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

My question to the right hon. Gentleman is this: why did it not occur to him on 4 November? On that date, he stood there and said:

“Having listened carefully to what the Home Secretary has said today, I believe that she has responded to legitimate concerns and broadly got that…balance right.”—[Official Report, 4 November 2015; Vol. 601, c. 974.]

What has changed in the interim?

[Andy Burnham]

Has the hon. Gentleman been listening? I began by saying the very same thing and said that we would work with the Government to get it right, but surely I am entitled, am I not, to raise specific concerns about the wording in the Bill—in this case, wording about “economic well-being”, which I believe opens up a large range of activities that could fit under that banner. I am saying to Government Members that if they want my help, they should help us get that definition right to reassure the public.

[Angela Rayner (Ashton-under-Lyne) (Lab)]

Millions of trade unionists, and many of my constituents, are genuinely concerned about the stretch of these powers. The two Front Benchers are being very decent at the moment in trying to introduce safeguards, but it is important for my right hon. Friend to scrutinise the legislation as he is currently doing, so that people can have confidence in it in the long term.

[Andy Burnham]

My hon. Friend has put it very well. It is a fact that trade unionists and other campaigners have been subject, over time, to inappropriate use of investigatory powers. If the Conservatives do not understand that, they need to go away and look into the issues. They need to get at the full truth about Orgreave and Shrewsbury, so that they can understand why some people who do not share their political views on life have a different feeling about legislation of this kind. If they did go away and do that, they would probably find that they could reassure people, and that there would be more public support for the Bill.

[Tom Tugendhat]

rose—

[Andy Burnham]

I am going to make some more progress now.

As I understand it, the intention of the authorities in building internet connection records is to list domains visited, but not uniform resource locators. There would not be a web-browsing history, as the Home Secretary said. The ICRs would show the “front doors” of sites that had been visited online, but not where people went when they were inside. That will give some reassurance to people who fear something more extensive, but the definition of ICRs in clause 54 remains extremely vague and broad. I see nothing that would prevent them from becoming much more detailed and intrusive over time, as technology evolves. The draft code of practice gives an illustration of what would be included, but it does not build confidence, as it acknowledges that information may vary from provider to provider.

It would help everyone if the Government set out a much stricter definition of what can and cannot be included in ICRs, and, in particular, specified that they can include domains but not URLs. The current confusion about ICRs is unhelpful and clouds the debate about the Bill. It needs to be cleared up.

As for the use of ICRs, schedule 4 sets out far too broad a range of public bodies that will be able to access them. It seems to me that the net has been cast much too widely. Is it really necessary for the Food Standards Agency and the Gambling Commission to have powers to access an individual’s internet connection record? I will be testing the Government on that. If there were a suspicion of serious criminality in respect of the food chain or a betting syndicate, surely it would be better to refer it to the police at that point. I must say to the Home Secretary that we shall want to see a much reduced list before this part of the Bill becomes acceptable to us.

[Mr Nick Clegg (Sheffield, Hallam) (LD)]

Does the right hon. Gentleman agree that not only are ICRs poorly and very broadly defined, but, even in the context of a narrow definition, the Government would still be proposing that every website or domain visited by every citizen in the country, every minute of every day, should be retained and stored for 12 months? Does he agree that that principle, whatever the definition, constitutes a very extensive power for the Government?

[Andy Burnham]

I do agree. If such information were published, it would reveal far more about someone than an itemised phone bill. The Home Secretary began this whole process by saying that they were the same, and that this was simply the modern equivalent. It is not. It would reveal a great deal about someone.

The reassurance that I would hope to give is that it is not necessary to limit the information, but it is necessary to raise the threshold allowing the records to be accessed, in order to make this a test of serious crime rather than any crime. At present, the Bill refers to “any crime”, but I do not think it acceptable for the kind of information to which the right hon. Gentleman referred to be available in the context of lower-level offences. I hope that he may be able to support me on that point.

Our fourth area of concern relates to bulk powers. It is a fact that criminals and terrorists, operating both here and overseas, may use a variety of means to conceal their tracks and make it hard for the authorities to penetrate closed or encrypted communications networks. I accept the broad argument advanced by the authorities that power to extract information in bulk form can provide the only way of identifying those who pose a risk to the public, but the greater use of some of those bulk powers takes investigatory work into new territory. The routine gathering of large quantities of information from ordinary people presents significant privacy concerns, and points to a need for the warrants to be as targeted as possible. The operational case for the individual bulk powers was published by the Government alongside the Bill, but it is fair to say that the detail has failed to convince everyone. It is still for the Government to convince people that the powers are needed.

[Lucy Frazer (South East Cambridgeshire) (Con)]

I am sorry to backtrack slightly, but I have just looked up the provision relating to “economic well-being”, which is fairly qualified. Clause 18(2) ties economic well-being to

“the interests of national security”.

However, it also states that a warrant will be necessary

“in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.

That provision is further qualified by subsection (5), which states that a warrant will be issued only

“if it is considered necessary…for the purpose of gathering evidence for use in…legal proceedings.”

Subsection (4) refers to

“information relating to the acts or intentions of persons outside the British Islands.”

It is clear that the position is extremely limited.

Let me add that, as a barrister who has presented a number of cases to judges, I believe that judges who look at legislation every day are perfectly adequate to the task of considering these principles.

[Andy Burnham]

I thank the hon. and learned Lady for the law tutorial. Her point may be one for Committee rather than Second Reading. However, I did refer to it earlier. The Bill uses the word “relevant”; it does not use the words “directly linked to national security”. She pulls a face, but I am sure that I speak for every Labour Member when I say that there is no room for ambiguity when it comes to these matters. The Government must be absolutely clear about what they mean. We have seen trade unionists targeted in the past on the basis of similar justifications, and we will not allow it to happen again.

[Tom Tugendhat]

The right hon. Gentleman wants the Home Secretary to draft a law that envisages every new provision, every change in technology, every change in crime and every change in threat over the next 50 or 100 years. The Home Secretary cannot do that and nor can the right hon. Gentleman, which is why the Home Secretary has instead introduced a system of oversight, proportionality and judicial checks and balances, in order to provide the flexibility that is necessary for our nation to have security in a changing world.

[Andy Burnham]

I disagree. I am making a legitimate point about which we feel strongly. I am saying that the most intrusive powers in the Bill should be strictly limited to national security. The hon. Gentleman has a different view, but I believe that serious crime and national security should be the strictly limited grounds on which the most intrusive warrants are applied for. I hope that he will approach the issue in a spirit similar to the one in which I have approached it: I hope that he will look into the concern that I have raised in more detail and try to understand why Labour Members feel so strongly about it.

[Joanna Cherry]

The hon. and learned Member for South East Cambridgeshire (Lucy Frazer) talked about barristers presenting cases to judges. Does the right hon. Gentleman agree that, given the double-lock model in the Bill, there will be no barristers arguing the case before the judicial commissioner? That is exactly the point. There will be no gainsayer and no proposer; there will simply be a judicial review, an exercise carried out by the judicial commissioner on his or her own.

[Andy Burnham]

That is an important point, which I shall come to in a moment.

I was talking about bulk powers. Important concerns were raised by the Intelligence and Security Committee about scope, oversight and the more generic class warrants, and I do not believe that they have been adequately answered. One of the Joint Committee’s recommendations was that the Government should establish an independent review of all the bulk powers in the Bill. Given the complexity and sensitivity of the issue, I think that the House would benefit from that, so my specific ask is for the Home Secretary to commission such a review, to be concluded in time for Report and Third Reading.

Our fifth concern is about judicial oversight, and relates to one of our earliest demands in respect of the Bill. The Government have given significant ground in this area, and, as the Home Secretary said, the Bill is stronger as a result. However, we believe that it could be stronger still. It currently says that, when deciding whether to approve a decision to issue a warrant, a judicial commissioner must apply

“the same principles as would be applied by a court on an application for judicial review.”

The point has just been made by the hon. and learned Member for Edinburgh South West (Joanna Cherry).

I have previously shared with the Home Secretary my fear that that could mean a narrower test, taking account of only the process and reasonableness of the Home Secretary’s decision rather than the actual merits and substance of an application. I was listening carefully to what she said at the Dispatch Box earlier, and I thought I heard her provide reassurance that a much broader consideration could be provided by a judicial commissioner. I hope that that is the case, and if it is, why not delete the judicial review clause from the Bill? That would make it absolutely clear this is not just a double lock but an equal lock, in which the judicial commissioner has the same ability look at the entire merits of the case.

Our sixth and final concern relates to the misuse of the powers. I accept the concerns of the Police Federation that there need to be safeguards for the collection of data in a lawful manner, but I also agree with its view that the Bill needs to make it clearer that an overarching criminal offence is created for the deliberate misuse of any of the powers. That should relate to the obtaining of data and to any use to which those data are subsequently put. Both should be a criminal offence. That would provide an extra safeguard for the public.

I have set out six substantive issues that must be addressed. Given the seriousness of these concerns, people have questioned why we are not voting with the Government tonight—[Interruption.] We are voting neither with them nor against them. The simple answer is that we need new legislation but the Bill is not yet good enough. That is why we have set these tests. Simply to block this legislation would in my view be irresponsible. It would leave the police and security services in limbo and, as communications migrate online, that would make their job harder. We must give them the tools they need to do the job. If we did not put new legislation on the statute book, we would leave the public exposed to greater risk because they would not have the safeguards that are in the Bill.

However, let me be clear that there is no blank cheque here for the Government. We will not be voting for the Bill tonight because it is some way from being good enough, and if the Government fail to respond adequately to the concerns I have raised, I give notice to them that we will withdraw our support for the timetabling of the Bill. It is as simple as that. The public interest lies in getting this right and in not sacrificing quality to meet the deadline. The time has come for the House to lay politics aside and to find a point of balance between privacy and security in the digital age that can command broad public support.

We on these Benches have worked hard to uncover the truth about some of the dark chapters in our country’s past precisely so that we can learn from them and make this country fairer for those coming after us. I want a Bill that helps the authorities to do their job but protects ordinary people from intrusion and abuse by those in positions of power. I also want Britain to be a country that gives its people individual privacy and collective security. Our shared goal should be a Bill that enhances our privacy, security and democracy and—with goodwill and give and take on both sides—I believe that that is within our grasp.

[Several hon. Members rose—]

--- Later in debate ---

[Joanna Cherry]

The hon. Lady will no doubt be unsurprised to hear that I do not accept that I am wrong. She is cherry-picking her way through the evidence that was heard. There was evidence contrary to the position that she has stated. I accept that there is a debate about this point, but I take the side that the review of judicial review principles does not go far enough. Why not go as far as other countries? Why not have one stage of judicial authorisation? That is the norm in comparable jurisdictions, by which I mean the United States, Australia and Canada. Judicial authorisation would help us, because it would encourage co-operation from US technology firms.

On a practical note, a two-stage process—whereby the issue goes to a Minister first and then to a judicial commissioner—risks delay. There is a huge volume of surveillance warrants, and it looks like there will be an awful lot more as a result of this Bill. It is unsuitable for a small number of Cabinet Ministers to deal with them.

I want to deal with another false premise that is often used to justify ministerial involvement in the issuance of warrants. Some people seek to argue that Ministers are democratically or politically accountable to this House on the issue of surveillance warrants, but that is a misconceived argument. Ministers are not really democratically accountable for their role in issuing warrants, because, first, the disclosure of the existence of a warrant has been criminalised and it will remain as such under the Bill. Secondly, all of us know—even those such as me who have been in this House for only nine months—that requests for information concerning such matters in this House are routinely parried with claims about national security. I do not accept that Ministers are practically, politically or democratically accountable to this House on the issuance of warrants. To return to the jurisprudence of the Strasbourg Courts, they have made it very clear that it is important to have effective supervision by an independent judiciary. We query whether the double lock mechanism meets that test.

We agree with many others that the case for collecting internet connection records, including the claimed benefit for law enforcement, is flawed. That is not just my say-so: there are many concerns across the industry. People who understand the technicalities far better than I do have explained the problem to me. I again associate myself with what the shadow Home Secretary said: the internet is not like the telephone system. An internet connection record cannot be compared to a telephone bill. The phone system consists of a set of records relating to when A calls B. If we collect phone system records, we will see at what time A called B and the duration of the call. As I understand it, the internet is more like a mailbox that collects packets of information and then takes them from A to B.

To take a rather middle-aged example, if somebody uses the Facebook messenger service, all the internet connection record will show is that he or she has connected to Facebook messenger. It will not show with whom he or she then communicated, because that occurs at a higher or lower level or in another unreachable packet. The internet connection record will not show the when, where and who that the Government say they want, and which they already get from phone records.

What the internet connection records will show is a detailed record of all of the internet connections of every person in the United Kingdom. There would be a 12-month log of websites visited, communication software used, system updates downloaded, desktop widgets, every mobile app used and logs of any other devices connected to the internet. I am advised that that includes baby monitors, games consoles, digital cameras and e-book readers. That is fantastically intrusive. As has been said, many public authorities will have access to these internet connection records, including Her Majesty’s Revenue and Customs, and the Department for Work and Pensions, and it will be access without a warrant. Do we really want to go that far? There is no other “Five Eyes” country that has gone as far. David Anderson QC said:

“Such obligations were not considered politically conceivable by my interlocutors in Germany, Canada or the US”

and therefore, he said, “a high degree of caution” should be in order.

Finally, let me turn to bulk powers. I have already made the point that even the Interception of Communications Commissioner’s Office says that bulk provides at the outset generalised initial intercept. We became aware of these bulk interception programmes only when they were disclosed by Edward Snowden in June 2013—whatever Members think about those disclosures and whether they were appropriate, that is how we became aware of the matter. This House has never before debated or voted on bulk powers, so we are being asked to do something very novel and very challenging, and we must do it properly.

The power to conduct mass interception has been inferred from the vaguely worded power in section 8(4) of RIPA, which illustrates the danger of vaguely worded legislation. Targeting bulk warrants at a telecommunications system or at entire populations rather than at specific individuals is a radical departure from both the common law and human rights law, yet that is the approach that will be maintained in this Bill. In many respects, that is the most worrying part of the Bill. Indeed, it is the part of the Bill about which the UN special rapporteur on privacy is most concerned. Let me read what he said, because it is very respectful of the tradition of the United Kingdom and it makes some very good points. He said:

“It would appear that the serious and possibly unintended consequences of legitimising bulk interception and bulk hacking are not being fully appreciated by the UK Government. Bearing in mind the huge influence that UK legislation still has in over 25% of the UN’s member states that still form part of the Commonwealth, as well as its proud tradition as a democracy which was one of the founders of leading regional human rights bodies such as the Council of Europe, the SRP encourages the UK Government to take this golden opportunity to set a good example and step back from taking disproportionate measures which may have negative ramifications far beyond the shores of the UK. More specifically, the SRP invites the UK Government to show greater commitment to protecting the fundamental right to privacy of its own citizens and those of others and also to desist from setting a bad example to other states by continuing to propose measures, especially bulk interception and bulk hacking, which prima facie fail the standards of several UK parliamentary Committees, run counter to the most recent judgements of the European Court of Justice and the European Court of Human Rights, and undermine the spirit of the very right to privacy.”

The rapporteur is appealing to the better tradition in this country, and saying that we should look at this Bill very carefully. He is suggesting not that we should throw it out, but that we scrutinise it very carefully, bearing in mind how far it intends to go in comparison with other countries and with existing international case law.

[Andy Burnham]

The hon. and learned Lady has made a very good speech this afternoon. Government Members should be working a little harder to reach out and build consensus. Before she finishes, may I invite her to say whether she will be supporting our call in Committee and on Report to make internet connection records accessible only through a warrant based on serious crime, not any crime, to give protection, and also for a clear definition of national security?

[Joanna Cherry]

Those are both issues on which we will work with the Labour party. I have already indicated that we intend to attempt to amend the Bill extensively in Committee. We are very concerned about internet connection records. We query whether their retention is necessary or appropriate at all, but we will look seriously at proposals put forward by other parties and will work with them.

The SNP is in favour of targeted surveillance. We welcome the double lock on judicial authorisation as an improvement, but it does not go far enough. Our concern is, quite clearly, that many of the powers sought in this Bill are of dubious legality and go further than other western democracies without sufficient justification. It is for that reason that we cannot give this Bill, in its current form, our full support. We will work with others to attempt to amend it extensively. Today, we shall abstain, but if the Bill is not amended to our satisfaction, we reserve the right to vote it down at a later stage.

--- Later in debate ---

[Mr Paterson]

Yes, I entirely agree that the whole decision should be in the hands of the democratically elected Secretary of State, responsible here, but by all means let there be the most rigorous and rapid review afterwards by a learned judge.

[Andy Burnham]

I am listening to the right hon. Gentleman’s remarks, and I did similar things as a Minister, but is it not the case that a politician’s mind will always turn to the question, “What if I don’t sign this?”, and the public embarrassment that might come from not signing? Is not the further judicial check a helpful double lock so that a politician need not worry that a failure to agree might lead to public embarrassment?

[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.

--- Later in debate ---

[Mr David Hanson (Delyn) (Lab)]

I wanted to contribute to today’s debate, because, like several other hon. Members in the Chamber, I served for four months on the Joint Committee on the draft Investigatory Powers Bill, which considered the Bill in some detail. They may be four months of my life that I will never get back, but scrutinising the Bill was certainly a worthwhile experience. The Joint Committee was appointed by the House in October and met from 25 November under the chairmanship of my noble Friend Lord Murphy of Torfaen. I pay tribute to him and to the Clerks of the Committee for the way in which they stewarded its deliberations. We had 54 witnesses and nine evidence sessions. We met in public and in private to scrutinise the Bill, in recess and out of recess, when the Commons was sitting. We received 148 submissions and more than 1,500 pages of evidence. We visited GCHQ and the Metropolitan police, and we gave detailed, fair, cross-party consideration to a difficult subject to bring forward proposals on. Our conclusions were relatively unanimous.

The first conclusion was that we need to modernise the current legislation, including that which expires on 31 December. There is therefore a clear need for this Bill, in order to modernise RIPA, the terrorism Acts, the Police and Criminal Evidence Act 1984 and other legislation to hand. We have to look at, and we ensured that we did look at, not only the issue of privacy, but the issue of security, both of which were central to our concerns. Although we welcomed consideration of the report, we did make 86 recommendations. If people want to read about this, as I am sure they will, they will see that our report contains 157 comments and recommendations in the summary and conclusions to improve the Bill and make it stronger, and to address some of the concerns that people raised.

I wish to draw the House’s attention, first and foremost, to our first recommendation, which states:

“Resolving the tension between privacy and effective law enforcement in this area is no easy task. The Home Office has now come forward with a draft Bill which seeks to consolidate in a clear and transparent way the law enabling all intrusive capabilities. The Committee, together with the many witnesses who gave evidence to us, was unanimous on the desirability of having a new Bill.”

The Labour party members, the Conservative members, the SNP member, the Liberal member, Lord Strasburger, the bishops and the independent members were unanimous on the need for a new Bill.

The question is: why do we need this Bill? I believe we need it for several reasons. First and foremost, we need it to tackle terrorism, strong and serious organised crime, paedophilia and organised crime across the board. If we look at the annexes to the reports presented to us as part of our evidence from, among others, David Anderson, we will see cases where terrorism has been stopped by activities dealt with under this Bill. For example, in 2010, an airline worker in the UK who had access to airline capability was stopped as a result of access to bulk data. We have information on GCHQ intelligence uncovering networks of extremists who had travelled to Pakistan and then been stopped as a result of the acquisition of bulk data. We have GCHQ evidence on bulk data that have tracked down men who have been abusing hundreds of children across the world and are now in UK prisons because of the powers dealt with in this legislation. We have information on criminal investigations into UK-based crime groups that were supplying class A drugs from south America, where intercept evidence provided intelligence on their modus operandi and they have subsequently been put in prison, resulting in fewer drugs on our streets. We have evidence, and we took such evidence in the Committee, about criminal investigations into London-based gangs, money laundering and dark web activities.

I took some of the previous legislation in this area through as the then Minister for Policing, Crime and Counter-Terrorism under the Labour Government, but things have changed since then. Six years ago, I did not use Twitter, I never had Facebook, and I did not have WhatsApp or the Fitbit that I have on my chest today—now I can talk to my family using them. We have not got the information material now to be able to keep up with the technology, which has advanced. If we look at the type of activity being covered by these Bills, we will see that terrorism is pretty low on the list, at only 1%. Other offences are crucial, such as those relating to vulnerable or missing persons, as well as drug offences, homicide and financial offences, and they cover a large bulk of the amount of work done to date. As I have said, the Joint Committee made 86 recommendations and the Government accepted 46 of them. I hope that we can look in Committee at 20 other recommendations that the Joint Committee made. To do that, this House needs to pass this Bill. I support the decision by my Front-Bench colleagues and the SNP to abstain, but, given that there are Conservative, Labour, SNP and, indeed, Liberal Members who support the Joint Committee’s report, I hope there will not be a vote today and that we will let the Bill go through and then deal with the key issues that my right hon. Friend the Member for Leigh (Andy Burnham) has mentioned, which are important to the Labour party. I hope we will also look at the 20 or so Joint Committee recommendations that have not yet been adopted by the Government.

The key issues include those mentioned by the right hon. Member for Haltemprice and Howden (Mr Davis) with regard to the definition of internet records. They also include targeting warrants for equipment; recommending and removing emergency procedures; recommending further safeguards for the sharing of information with overseas agencies; and more support and recommendations for strengthening the protection the Bill affords to journalistic material.

[Andy Burnham]

I am listening very carefully to my right hon. Gentleman and I agree entirely with everything he has said. Before he finishes, will he say a little more about the Committee’s recommendation on the definition of national security? The Committee raised that as a concern and the term has been used to cover a multitude of activities. Does he agree that it would be better for the Government to provide a clear definition of national security in the Bill and to drop the justification of economic wellbeing for the more intrusive warrants?

[Mr Hanson]

I cannot speak for the Committee as a whole, but my right hon. Friend makes a very important point. We asked, “What is national security?”, and the answer we got was, “What the Government deem it to be.” Perhaps it is time to make a definition.

My right hon. Friend said that the Labour party would set important challenges. If he looks at the 20 cross-party recommendations that have not been accepted—I am sure that he and the Government will do so—he will see that we have the ability, here and now, to make real and effective changes that would improve the Bill further. The key one is that relating to the definition of internet records and, as I asked the Home Secretary earlier, their deliverability. I genuinely do not have a great problem with the principle of defining an internet record or with the question of how we store it and eventually track individuals who have committed crimes or who could commit crimes in the future. The key point, however, is that we do not yet have a definition, nor do we have clarity on how the Government will fund and manage the storage of internet records.

I hope that the Bill Committee members will look at the written evidence received from Vodafone, TalkTalk and EE. They are very clear that they can use the budget set by the Government over 10 years to develop and manage the storage of internet records. We need a better, more effective way to deal with the issue.

I hope that there will not be a vote. If there is one, I will abstain—it is not my job to support the Government’s Bills through the Commons—but I really hope that the Bill will make it to the statute book in due course, after meeting the strong challenges set by my right hon. Friend and the cross-party Joint Committee. If that happens, the Bill will be used appropriately to stop paedophilia, organised crime and drug trafficking, to prevent terrorism, and to protect our citizens, which is the first duty of this House. That is what we should aim to do this evening.