Investigatory Powers Bill

Andy Burnham Excerpts

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

Finally, I understand the effort that Ministers have made to work with the Opposition and concerned Members in all parts of the House to try to ensure that the Bill gets on to the statute book by December. I appreciate that there is a sunset clause and that we must do something—we cannot do nothing. It is horrible that we live in a society in which these situations are emerging. For me, these are probing amendments designed to highlight specific areas of concern that need further scrutiny. I hope that they may be of interest to Members of the House of Lords and that they will consider the issues I have spoken about regarding the filter. I hope that the Government will take the amendments in the spirit with which they are offered, which is as probing amendments; not to be pushed to a vote, but as the basis for more negotiation.

[Andy Burnham (Leigh) (Lab)]

This final group of amendments covers three of the seven substantial concerns that I set out in a letter to the Home Secretary after Second Reading: first, protection of journalistic material and sources; secondly, the definition of internet connection records, and the threshold for their use; and thirdly, the independent review of the operational case for bulk powers. Let me take each in turn.

I will deal with journalistic material and the protection of sources briefly, as the matter was debated at length yesterday. Protecting the ability of whistleblowers in private or public sector organisations to speak to journalists without fear of identification is one of the important checks and balances on state and corporate power. Many journalists and the National Union of Journalists have real concerns that clause 68 weakens the existing protections in law for journalistic sources operated under the Police and Criminal Evidence Act 1984. They point to an incident in 2014 when police secretly accessed the mobile phone records and call data from a national newspaper, bypassing the PACE protections. Rightly, there are now worries that that has set a new precedent. Furthermore, they feel that the Bill might be about to enshrine that new precedent in law.

Under PACE, journalists are notified when the authorities want to access material and sources, so that they have the ability to challenge that in open court. The worry is that the Bill removes those protections. The National Union of Journalists makes the point that there is no real difference between physical notebooks and communications data held electronically; both could reveal the identity of a source. Labour shares those concerns; they were ably raised by my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) in Committee, and they were also raised on Second Reading.

The Government have gone some way towards addressing our concerns, tabling amendments 51 and 52, which we welcome. The amendments will ensure that judicial commissioners, when considering a warrant, must give weight to the overriding public interest in a warrant being granted for the use of investigatory powers against journalists and that they must ensure that that is in keeping with wider and more general privacy points. That is a significant move. It takes points that would otherwise have been in codes underpinning the Bill and puts them on the face of the Bill.

Labour will accept these amendments, but we will do so while being clear that they do not go far enough. Indeed, they cover only the award of warrants, not general access to communications data. We therefore support the amendments tabled by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) on behalf of the Joint Committee on Human Rights—amendments 143 to 145—which seek to extend the same level of protection to journalists as is currently the case under PACE.

We accept that this is a difficult area to get right, particularly when the definition of who is and who is not a journalist is changing in the digital world. We accept the difficulty facing Ministers. However, we think that the general principle, enshrined in PACE, of allowing journalists to challenge in open court any attempt to access material that could reveal sources is a good one. It would allow those public interest arguments to be heard and tested in court. We hope that the Government will today commit to working with us and the NUJ to find a wording that in the end does the job.

[Mr John Hayes]

The right hon. Gentleman has made his case in a measured way. He acknowledges that it is difficult to define journalists because the modern media include many bloggers who are part time, occasional and so forth. However, he is absolutely right that a solution needs to be found, and I am happy to say that we will look at this issue with him and others in greater detail as the Bill enjoys its passage through this House and the other place.

[Andy Burnham]

I am grateful for what the Minister has said. It must be possible to find a definition that excludes casual or voluntary bloggers from individuals who make their living from writing or who work for organisations regulated by the Independent Press Standards Organisation or other regulators.

[Joanna Cherry]

I and my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands) have added our names to the amendments tabled to clause 68 by the right hon. and learned Member for Camberwell and Peckham (Ms Harman), and we will give them our support if they are pushed to a vote. However, does the right hon. Gentleman agree that it is regrettable that the opportunity has been lost at this stage to have uniform protection across the face of the Bill for communications with journalists, lawyers and parliamentarians?

[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?

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[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.

[Mr Hayes]

I have committed to writing to the NUJ and the Society of Editors, which I have met already. I have been waiting to do so until today’s debate so that my letter can be informed by it. However, I will happily write to them tomorrow, very much on the basis of taking these matters forward.

[Andy Burnham]

I very much appreciate what the Minister has said. I think that any colleague in any part of the House who has read the NUJ’s briefing for today’s debate will struggle to disagree with anything in it. If we want this Bill to leave Parliament with a high degree of consensus across society, it is right that these professional bodies feel, in the end, that the Bill is something they can support. That is a prize worth working for. Given his comments, I get the feeling that the Minister agrees.

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[Mr John Hayes]

I am sorry to interrupt the right hon. Gentleman in his flow. I have listened carefully to what he has said, and it has been the subject of discussion, as he knows, in Committee and elsewhere. I do not want to anticipate my hon. and learned Friend the Solicitor General in his summing up, and I mean him no discourtesy, but as the Bill Minister and the Security Minister, I commit to doing what the right hon. Gentleman asked. I do so because it is really important that we have a threshold that works, particularly on ICRs.

ICRs are, as the right hon. Gentleman says, qualitatively different. He is right about cases of harassment, and so on and so forth, which is why the matter is challenging and complex. He has made a powerful case here, following the powerful case made by the hon. and learned Member for Holborn and St Pancras (Keir Starmer), and I will bring the matter back to the House during our proceedings on the Bill in the form of an amendment, in the spirit that he has described.

[Andy Burnham]

I said at the start that I was looking for considerable comfort, and I think I have just received it from what the Minister has said. To be clear, I was saying that there should be a threshold of six months for the use of communications data, and a higher threshold on top of that for internet connection records. As the Minister just acknowledged, there is a qualitative difference between the two. If that is what we are agreeing, and if we are also agreeing that there should be no restriction on the use of internet connection records for the other serious purposes that I have outlined, the Opposition can probably move forward on that basis without pressing our amendments to a vote.

This is the area in which the Bill has the ability to lose public trust if we do not get it right, because it could affect every single citizen in the land. I am sure that as constituency MPs many of us have dealt with situations where an individual falls out with the police at a local level, and they perceive that they are being investigated for all kinds of things and that all aspects of their lives might be turned upside down. We have to put in place appropriate protections that would not allow personal information to be handed over freely in relation to more trivial offences.

[Suella Fernandes]

The provisions on ICRs are designed to resolve two problems. First, our law enforcement and security personnel cannot carry out IP address resolution—identifying which device is communicating with which device—without the new powers. Secondly, even with the originating and destination IP addresses, it may not be clear which website or communications service has been accessed. The evidence from the professionals to the Joint Committee was clear: ICR retention is imperative to enable IP address resolution for investigations.

[Andy Burnham]

I am grateful to the hon. Lady for making a point that will enable me to be absolutely clear about what I am saying. I am not arguing against the retention of the data, as I think I made clear at the beginning. I am not arguing against ICRs per se. I acknowledge that they could be a very important tool. In an age when communications have migrated online and people have fewer voice telephone calls, this information could be crucial in detecting serious crime. I am saying that while we should legislate to allow the data to be held, we must also legislate to put in place a very precise threshold, so that the circumstances in which those data can be accessed are explicitly clear. There is not a broad reasonableness or necessity test. What I am saying is that we need a very clear definition of what level of crime permits the authorities to access those records.

I believe that if we find that definition—I feel that the Minister has given a commitment that we will get it—it will enhance public trust in this legislation. In my view, it will knock out completely that lazy label of “snoopers charter”. That is why it is so important that the Government nail this point before the Bill concludes its passage.

[Mr John Hayes]

The right hon. Gentleman has looked at these matters very closely, as is illustrated by the fact that he has rightly said that there are some crimes, such as harassment, stalking and so on and so forth, that would not neatly fit into a simple category. He is also right that the threshold must be robust. This is not about minor crimes and it is not about snooping, as the less well-informed critics have sometimes described it. I have given the commitment that we will work with him and others during the passage of the Bill to move an amendment to address this issue. He was right to raise it today. He has asked for a commitment and he is getting one.

[Andy Burnham]

We have learned to admire the Minister greatly through this process, and we have learned that when he says something, it happens. I am reassured by the words that he has just put on the record.

If it helps—perhaps it does not, but I will say it anyway—I would favour quite a high test for ICRs, and significantly higher than six months. Alongside that, it might be possible to itemise the other individual occasions on which they could be used, be it online grooming or missing persons. The danger with trying to capture it all in a single time period is that we might open the net to other offences that we would not want to be included. I fully acknowledge that this is a complex area. That is why I want to give the Ministers leeway to see whether, working with us, they can find the right definition.

[Dr Murrison]

The Joint Committee spent a lot of time on ICRs and IP address resolution; then along came clause 222, which gave us some comfort because the matter can be reviewed in five years. Some of us are of the view that ICRs will not, in any event, prove to be as useful as we might hope and as Ministers certainly hope. The Danish experience was that they were not useful and their collection was therefore dropped. It is quite possible that that will come to pass here, and that in five years’ time we will review this matter. Does the right hon. Gentleman agree that clause 222 persuades some of us who are a bit doubtful about the utility and value of ICRs that we should allow the provision because it will be reviewed in five years’ time?

[Andy Burnham]

The review is clearly a good idea, but it is also a good idea to tighten the definition and the threshold now, because we need to ensure that there is a degree of public confidence in what is being done here. I fully accept that the review is important. The point is that although ICRs in themselves may not necessarily solve a crime, they may let the authorities know where to go to ask for more intrusive information. They will identify the app, service or whatever it is that is being used, which might allow further lines of inquiry.

I would not be casual about this point—not that I am suggesting the hon. Gentleman was being so. If we were to publish somebody’s 12-month website visiting record, which effectively is what an ICR is, it would reveal a large amount of information about them. It would give a pretty decent profile of what kind of person they were and some of the information could be highly personal. That is why I say that we need to legislate with great care in this area if we are to carry the public with us.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The right hon. Gentleman is making good progress in getting very welcome undertakings from the Minister to review this whole business, in particular on serious crime and on the creation of ICRs; will he confirm that his concern also extends to the accessing of communications data by a huge range of public bodies, including every local authority? When he is discussing this matter in the near future he will have better access than anyone else, or at least than most other people, so will his concern extend not only to defining serious crime but to looking at clause 53(7)? In that subsection, any crime is relevant, as is any occasion of preventing public disorder, which could extend to difficult neighbour cases. It also allows collection of data

“for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department”.

It seems to me that the word “serious” should be put in all that, or else certainly some threshold should be. It is extremely all-embracing, and allows a district council anywhere to start getting access to communications data. Will he take those points into account as well?

[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.

[Mr Grieve]

I say to the right hon. Member for Leigh (Andy Burnham) that, as far as the review is concerned, I have no doubt that the Intelligence and Security Committee will respond positively and provide input if David Anderson wants to discuss those matters with us. I certainly look forward to seeing his conclusions in the review on bulk powers, which I hope will be helpful to Parliament in identifying what improvements we can make.

Amendment 13, which is in my name and those of my colleagues on the Intelligence and Security Committee, concerns clause 54, on the additional restrictions on the grant of authorisations of communications data. In the Committee’s report into privacy and security published in March 2015, we recommended that, just like the police, the intelligence agencies should always ensure a separation of roles between those requesting access to communications data and those who provide the authorisation. Previously, that has not been the case. I am grateful that the Government accepted that principle, and that it is enshrined in clause 54(1). That is an important safeguard that the Government have added to the Bill.

I hope the Minister will forgive me, but notwithstanding that, the Committee, having looked carefully at the Government’s amendment, believe that, although it is 90% of the way there, 10% might do with some improvement. The Bill provides that there may be exceptional circumstances in which a separation is not required. I entirely accept that that is the case. There will be a small and probably very infrequent number of such examples where there is an imminent threat to life, which is provided for in clause 54(2) and (3). However, clause 54(3)(b) simply cites

“the interests of national security”,

which I should tell the Solicitor General is rather a broad concept, particularly as it features in all sorts of places in the Bill and can be extended to encompass almost anything that falls within the agencies’ remit.

The Committee believe that it is too vague and potentially too broad. Therefore, in amendment 13, we have proposed a measure that tries to narrow the matter down without in any way affecting operational effectiveness. The amendment would limit exceptional circumstances to those where the operation is so sensitive that knowledge of it must be kept to an absolute minimum, or where there is an unplanned, time-critical but very significant opportunity to obtain information that might be lost owing to any delay in obtaining a separate approval.

The Committee very much hopes that the Government are in a position to accept the amendment.

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[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.

[Andy Burnham]

I am listening carefully to what the hon. Gentleman is saying, and he is obviously aiming some of his comments in Labour’s direction. In a world where people are making fewer voice telephone calls—and if he is proposing that he would not want to collect this data—how would he propose the authorities go about locating a missing child in the early hours after the disappearance?

[Gavin Newlands]

rose—

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[Andy Burnham]

I was first elected to the House 15 years ago to this very day. In that time, debates on security and privacy have produced some of the most fractious exchanges I have seen. It is treacherous territory littered with past failure. Too often, such debates are pitched as a clash between two absolutes of privacy and security, where there can be no compromise and only one winner—witness the Apple versus FBI debate in the US.

I have always started from the point that people should not be forced to choose between the two. We all have an interest in maximising both our personal privacy and our collective security. We have to work to find the best point of balance between the two. Over the past three months, this House has got closer to finding that balance than ever before. We have elevated the debate above simplistic loyalties to the security or privacy lobbies. As a result, we are now significantly closer to developing the balanced, modern, world-leading framework, which the Home Secretary spoke about, for the use of investigatory powers that this country needs in the digital age.

I echo the thanks the Home Secretary gave to right hon. and hon. Members of this House and its various Committees: all Members who have contributed in the past two days; the members of the Public Bill Committee; the Chairs of that Committee, the hon. Member for Mid Bedfordshire (Nadine Dorries) and my hon. Friend the Member for Ynys Môn (Albert Owen); and the Clerks and the Public Bill Office for overseeing such a high quality process.

The Bill leaves this House in a much better state than we found it. That is due in no small part to the forensic mind and engaging approach of my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer). By setting out clearly after Second Reading our seven substantial concerns, we have been able to bring a focus to this debate that I think has been to the benefit of this House. I am pleased to say that we have secured major commitments on all seven concerns, in particular on bulk powers, the independent review, the privacy clause, judicial oversight and the double lock, and trade unions. Thanks to the constructive work of Labour, there are stronger safeguards in the Bill that protect people’s privacy and their human rights. I say this to those who might be planning to vote against the Bill tonight: a vote against it is to deny people those safeguards and to leave on the statute book a much weaker piece of legislation that does not afford those protections.

Our consideration has also been helped by the way in which we, as a country, continue to shine a light on some of the darkest chapters in our past. We continue to learn of instances where the power of the state has been unfairly used against ordinary people. By being prepared to open up about that and be honest about how we were governed and policed in the past, I believe we are now beginning to make better legislation in the present. I pay tribute to the Home Secretary for the courage she has shown in being prepared to do that, but I say again that she should be prepared to carry on going wherever that evidence takes us. Following the Hillsborough verdict, I believe that that trail now leads very firmly to Orgreave, and, following the court settlement last month, to blacklisting.

I will continue to press the Home Secretary on those matters, but I congratulate her on how she and her Ministers have handled discussions on the Bill. The Security Minister, or Brother Hayes as we might now call him after his starring role in today’s papers, has brought all his considerable experience and personality to bear in moving the Bill forward. It is all the better for it. Although he probably does not want me to mention him, I feel the need to mention the hon. Member for Brighton, Kemptown (Simon Kirby), who has been the most helpful Government Whip I have ever come across.

Let me be clear: the Bill is not there yet. We need further changes on internet connection records—the Home Secretary alluded to that—and on the protection of journalists and their sources, and on legal privilege. However, if the Government continue with the same approach as the one they have adopted in recent weeks, I have every confidence that we will get there. We must do that for those who depend on the Bill we are debating. The police and security services do incredibly difficult work on our behalf and we thank them for it. Their job has got harder as both the level of the threat has risen and the nature of communication has changed in the modern world. To fail to respond to that would be a dereliction of our duties to them; it would also fail our constituents. The Bill is ultimately about their safety, the safety of their families and their privacy. I think we can look ourselves in the mirror tomorrow and say we have done our level best to maximise both.

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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.