Investigatory Powers Bill

Baroness Hamwee Excerpts

Monday 27th June 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my noble friend Lord Paddick remarked to me the other day that investigatory powers should be intelligible to a 70 year-old computer-illiterate grandmother. I did wonder whether he was talking about me—although I have to say none of those characteristics applies—and was also quite concerned that he thought 70 was old, but I realised that his comment was very apt. Transparency does not mean being able to see through something but means that you should be able to see the thing itself, and know it and understand it in the context we are discussing. Every Bill throws up its own lexicon: transparency is one item in it for this Bill, as is balance, which has been mentioned several times tonight.

I am not sure we should be in the business of “balancing” privacy and security. The term “binary” has become quite common, but for these Benches, privacy and security are not binary or mutually exclusive—a point I think the noble Lord, Lord Rosser, made right at the beginning of the debate—and our aim must be to achieve both. However, we are bound to discuss privacy more than security, not least because of the old dilemma, which my noble friend Lord Oates referred to, of what an Opposition, the public and perhaps also Ministers can say in response to, “If you knew what we know”. My noble friend Lord Strasburger made a very big ask of Ministers about unacknowledged knowns and indeed unknowns. I do not want to avoid acknowledging the crucial importance of security, so will say that we are part of what RUSI called the,

“near-consensus in public opinion that there are circumstances in which law-enforcement agencies … and security and intelligence agencies require sensitive capabilities to obtain communications in order to safeguard national security, investigate crimes and protect the public”.

But that is the beginning of the story—my words, not RUSI’s—not the end.

Ministers must be in an unenviable position. It must be hard to have the agencies saying, “Yes, please”, to more and more information—of course they will say that. But does quantity affect quality and workability? I confess I have long had a mental block about these issues. I am not computer-illiterate, but neither am I very computer-literate. My lightbulb moment—or one of them, the other coming when I read the Library Note, which, I should like to put on record, was admirably clear—was when I realised that it was not entirely my fault that the technical language was blocking my thinking about the underlying issues. Language should clarify, not impede, debate and scrutiny. That is not a criticism of the drafting of the Bill, but more of the commentary around it.

There is a consumer rights issue in this as well. It is very odd and disconcerting that after you casually look something up online, you are prompted to pursue it by advertising of the product or service. I say to the noble Baroness, Lady Liddell, that I am not exalted. I appreciate the commercial realities of this, but how many people realise that in the small print, which they did not read, they have consented to information being passed on to third parties? What do you do if you read it and do not like it? Do you cut yourself off from an essential modern tool? Public services, which we are talking about—not commercial services—must be better than that.

It is particularly important to me that the citizen, who is more than a consumer, is made aware of having been subjected to the use of powers. You may be part of a large group targeted—I use the term technically—although not suspected. I say that because the corollary of the right to know is the right to challenge. Those who are entrusted with oversight need the structure and criteria that enable them to make a proper assessment.

I still have a problem with the judicial review principles, and indeed I wonder whether the filter provided by the Bill is just another mechanism to collect information, but we will come back to all that.

In the Commons, the Government made a number of commitments to consider further amendments, including commitments made to the chair of the Intelligence and Security Committee, and the noble Earl referred to several amendments that we may expect. It is important—I hope we can hear this tonight—that the House knows from the Government when they will publish their amendments or, conversely, that they inform us that they will not propose amendments on the issues they have raised and on which they have given assurances that they will consider various matters.

The Joint Committee on Human Rights—like the noble Lord, Lord Henley, I am a member—has also reported. As the noble Lord said, “due course” will bring more comments on that. The committee acknowledged that the Bill represents a significant step forwards in human rights terms, but many human rights are engaged—privacy, freedom of expression, the protection of personal data, and freedom of association, assembly, religion and movement—and any interference must of course be in accordance with the law, not only with a clear legal basis but sufficiently specific to guarantee against arbitrariness. It must also be necessary in the pursuit of a legitimate aim, as well as being proportionate. I agree with my noble friend Lord Campbell and the noble Lord, Lord Reid, that this is not a constant: life changes. That leads me to the adequacy of the safeguards, especially as the regime has not been given the cleanest bill of health by a clutch of UN special rapporteurs or the Council of Europe Commissioner for Human Rights.

However, it is not only the legislation but how the powers are used that is critical. For me, the codes of practice are less important to this debate because, as has been said, they are not amendable by Parliament, and indeed Parliament is dependent on others to check compliance with them. There is a limit to the Executive’s accountability. Accounting for one’s actions is empty if the actions themselves are not explained. As I understand the Bill, the Executive’s own proposals gag the Secretary of State with regard to that accountability.

The safeguard of and public interest in, as my noble friend Lord Thomas of Gresford put it, legal professional privilege is something that I feel particularly strongly about as a lawyer, although I have never had to get my feet wet in the cause of it. As we are all potential clients, it was predictable that it would receive a lot of attention today, and it will receive a lot in the following stages of the Bill. By some distance, we have not yet dealt with the issues of what my noble friend Lord Lester called the potentially chilling effect.

Similarly, as a politician and a citizen, I am concerned about safeguards for journalists and journalistic material. That may be the definition to pursue, but I acknowledge that there are difficulties around definitions. Journalists’ work may not all be in the public interest but much of it is, and there is a clear public interest in protecting journalistic sources. There will be a number of issues to cover, particularly internet connection records, from the point of view of service providers as well as the public. The noble Baroness, Lady Neville-Jones, referred to the intelligent and constructive engagement of the providers, and they still have significant concerns. I was interested in the points they made in briefings about extraterritoriality and the international regime, or lack of it.

And we will have the review of bulk powers, which, as the Minister says, will become more important than ever. The terms of reference for the review make it a matter for the Prime Minister as to whether the review is published. I think it would go against the spirit of the review if it were not. Tributes have been made, and rightly so, to David Anderson. I wonder, who would be David Anderson? What a responsibility we place on his shoulders. It is not for us to comment on Commons procedures, but Members of the House of Commons will not have a chance to propose amendments to the Bill in response to the review of bulk powers unless we amend it and give them that chance.

When the draft Bill was published, I worried that I was not sufficiently worried. Over the years, talking on the phone to a friend whose work has been closer to the security world than mine has ever been, we have joked about some odd interruptions and noises and said things like, “I hope whoever’s listening finds this interesting”. However, when I realised that the regime extends from what I do to who I am—my legal secrets, as my noble friend Lord Macdonald put it—my concerns fell into place. My noble friend Lord Carlile’s phrase “the legitimacy of use” is very helpful here. As I say, we will focus on internet connection records.

I said that our task is about achieving privacy and security. The next few months will be turbulent politically. Where we will end up, who knows? This certainly suggests to me that perhaps we should not wait five years for a review of the Act that this will become. Whatever the turbulence—or “disarray”, which was the rather more polite term used by the noble Baroness, Lady O’Neill—we must not be diverted from the task in “the age of anxiety”, in the phrase of the noble Lord, Lord Hennessy, and, in that of the noble Baroness, Lady Harding, in the “civilised digital world”. It is an important task.