Investigatory Powers Bill

Baroness Hamwee Excerpts

Wednesday 7th September 2016 Lords Chamber

Mr Anderson says in paragraph 9.30 of his report on page 128 that he was strengthened in his resolve to make this recommendation by learning of the existence, not publicly disclosed until now, of the scientific advisory committees, or SACs, that give external advice to, respectively, MI5, MI6 and GCHQ. This is not the only matter that has emerged into the public domain in recent months relating to our security and intelligence services and the way in which they function. One only hopes that in future there will be rather harder challenges made about the need to keep information secret which if made public would not constitute a threat to national security or the effectiveness of our security and intelligence services, but which might, if made public, enhance trust over the necessity for the powers that they have, the way in which they are exercised and the safeguards and checks that apply. I move Amendment 194H.

[Baroness Hamwee (LD)]

I hope I am right in thinking that the Government did not table an amendment to this effect at this stage because of time constraints and that they will bring forward their own version. In case I am wrong about that, I will ask the Minister a question which I asked him privately a couple of days ago: what do we have to do to persuade the Government to accept Mr Anderson’s recommendation? I can hear the response to a different hypothetical amendment, but David Anderson did not recommend that. So we have the converse being the situation we have now. There is so much confidence in him. We are all aware of the care that he has taken with this report and to stay within the terms of reference, which we, too, would have liked to have been rather wider. His recommendation should be accepted. None of us will be surprised to be told, “Yes, in principle, but not quite this drafting”. Nor is it surprising that the answer to the question about the operational case is, “Yes, there is a utility in these powers”, even though, as I say, the question is narrower than we would have liked to have seen.

Mr Anderson identified the difficulties of buying in expertise to perform the functions that he has talked about. He said that the experts involved should be “capable of probing” the agencies,

“explaining difficult concepts to lay decision-makers, and generally contributing to the culture of robust challenge that will be essential to the effective operation of the IPC”.

He envisaged,

“a mixture of independent academics and individuals with substantial, current experience of industry”.

He does not discount moral philosophers. I am sorry that the noble Baroness, Lady O’Neill, just left, because there are Members of this House who could make the case for moral philosophers in this arrangement and who, by their own contributions over a range of issues, continually make the case.

Mr Anderson also quoted a point about the importance of the IPC proactively seeking out and bringing to public attention,

“material legal interpretations on the basis of which powers are exercised or asserted”.

I have struggled—as will have been clear enough to other noble Lords—to understand the subject matter of the Bill to get beyond the answer to Polonius’s question:

“What do you read, my lord?”,

which for me is also, “Words, words, words”. Graham Smith, the lawyer who made this point and who is quoted by David Anderson, in evidence to the Joint Committee wrote about the importance of bringing,

“a legal interpretation … to the attention of the oversight body which would have to bring it to public attention”.

He said that such mechanisms—bringing legal interpretations into the arena—would enable them to be,

“publicly debated and if appropriate challenged”.

He talked about providing,

“not only oversight but insight”.

I like that phrase.

These issues of the legal interpretation are inseparable from what is conventionally thought of as technical. I mention them now as it seems useful to try to cover the ground a little. I will try not to repeat the points made by the noble Lord, Lord Rosser, with which, by and large, these Benches completely agree.

David Anderson gave us one example of the technological issues affecting the future use of bulk powers: the continuing trend towards anonymisation. I thought I would share with the Committee an experience I had recently that brought home to me of what general and overwhelming public importance these issues are. I was very startled to find that a play I went to at the Edinburgh Fringe a couple of weeks ago was about RIPA—not perhaps what you want at nine o’clock in the morning of a holiday. It was also primarily about how easily information about each of us is accessed, used or misused. I hope that Tim Price, the writer, will forgive my quoting him alongside Shakespeare, but I was taken by this. I will not read the whole script. He said that,

“if you believe in freedom of association, if you believe in freedom to protest, if you believe in privacy, then the only way to exercise those freedoms is to be anonymous … If a Government cannot identify you, it cannot surveil you”.

From these Benches, we support the amendment.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I agree with the noble Lord’s intention in Amendment 204 to ensure that communications data can be acquired in bulk and analysed in real time. Indeed, the Bill already permits this. I draw attention to Clause 146(5) and 146(6), which provide for such a scenario as he suggests in this amendment. These subsections specify the conduct which must be described in the warrant and any conduct that it is necessary to undertake to do what the warrant expressly requires. If it was therefore necessary to obtain bulk communications data in real time, these provisions would allow it.

[Baroness Hamwee]

My Lords, I think that the noble and learned Lord is speaking to Amendment 204, which has not in fact been spoken to.

[Lord Keen of Elie]

I had understood that the noble Lord, Lord Paddick, also referred to Amendment 204 but if he did not, I apologise.

I turn then to Amendment 203A, which seeks to exclude the ability for a bulk acquisition warrant to require a communication service provider to obtain third-party data where it is not already in its possession. I do believe that the noble Lord referred to that.