Investigatory Powers Bill

Baroness Jones of Moulsecoomb Excerpts

Monday 12th September 2016 Lords Chamber

Moved by

[Baroness Jones of Moulsecoomb]

236A: Clause 235, page 184, line 36, at end insert—
““national security” means the protection of the existence of the nation and its territorial integrity, or political independence against force or the threat of force,”

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the amendment seeks to put right a government oversight: there is no definition of national security under general definitions throughout the Bill. A principal statutory ground for authorising surveillance is,

“in the interests of national security”.

Another is “economic well-being” as far as it relates to national security. Left undefined, national security is unnecessarily open, broad and vague and, I suggest, likely to be abused. As the decision will continue to lie with the Secretary of State, the test will be met by whatever she or he subjectively decides is in the interests of national security or the economic well-being of the UK, so that individuals cannot foresee when surveillance powers might be used, granting the Secretary of State a discretion so broad as to be arbitrary. In the past, domestic courts have responded with considerable deference to government claims of national security—and not just domestic courts but other political parties at times. They have viewed them not as a matter of law but as Executive-led policy judgments. National security as a legal test is absolutely meaningless if left without a statutory definition.

The Joint Committee on the draft Bill recommended that the Bill should include definitions of national security and economic well-being. It is confusing even to use the measure of economic well-being, which should be subsumed, as recommended by the ISC, which found it “unnecessarily confusing and complicated”, saying that the agencies and Home Office had not “provided any sensible explanation” for including the term. I look forward to the Minister supplying that sensible explanation. Therefore, the core purposes for which extraordinary powers may be used remain undefined and dangerously flexible. The undefined tests of national security and economic well-being risk interference with political and other lawful activity that ought to be unimpeded in a democratic society. In an era when parliamentarians from both Houses have been subjected to inappropriate surveillance by security services and the police, the continued undefined use of these terms in enabling legislation is not appropriate or sustainable. I beg to move.

--- Later in debate ---

[Earl Howe]

My Lords, the arguments for and against a definition of national security have been considered at length both here and in the other place over the years, including in the Bill’s Committee stage in the other place. Neither House has been persuaded of the necessity of such a definition.

If the Committee will forgive me, I do not intend to rehearse previous discussions in full, but suffice it to say that it has been the policy of successive Governments not to define national security in statute. National security is one of the statutory purposes of the security and intelligence agencies. Threats to national security are, as we have heard, constantly evolving and difficult to predict, and it is vital that legislation does not constrain the security and intelligence agencies in their ability to protect the public from new and emerging threats.

The noble Lord, Lord Lester, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, made a very important point about the European convention. However, I think the key point is that to define national security in statute could have the unintended effect of constraining the ability of the security and intelligence agencies to respond to new and emerging threats to our national security.

My noble friend Lord Swinfen made an important point which was echoed by the Solicitor-General in the other place. Who could have imagined a few years ago cyberattacks of the nature and scale that now threaten us?

As I understand it, the noble Baroness, Lady Jones, is concerned with the purpose of national security being subject to too broad an interpretation in the Bill. I hope, however, that she will be reassured by the role of the judicial commissioners. They will oversee the use of these powers and will ensure that they are used only when it is necessary and proportionate to do so. The commissioners are the ultimate check against abuse. We need to remember that all the most intrusive powers in this Bill that may be used for the purpose of national security are subject to the double lock. That means that the Secretary of State and a judicial commissioner must consider whether their use is necessary and proportionate. The activities of the security and intelligence agencies will be subject to retrospective oversight by the Investigatory Powers Commissioner and, of course, the Intelligence and Security Committee of Parliament. Should the Government ever treat national security as a kind of blank cheque, I have no doubt that the ISC and the IPC would make clear their position in their reports.

In view of the considerable time that Parliament has spent considering this question in the past, the conclusion it reached and the arguments advanced during this debate, I invite the noble Baroness to reconsider and not to press her amendment.

[Baroness Jones of Moulsecoomb]

Why was the phrase “economic well-being” included as a rather loose term?

[Earl Howe]

I do not think I would characterise it as a loose term. The meaning of “economic well-being” is well understood. Therefore, I am not sure what the noble Baroness’s worry is in this context.

--- Later in debate ---

[Lord Lester of Herne Hill]

I hope that I am not out of order in suggesting that the words “economic well-being” are in Article 8 of the convention. That is where they come from. They were put in by British negotiators. They are very wide and do not help very much, but that is where they come from.

[Baroness Jones of Moulsecoomb]

My point is simply that there was a recommendation that it was unnecessarily confusing. Therefore, there must be a reason for putting it in, and I would like to know the reason; that is all.

[Earl Howe]

It was to make it clear that economic well-being is a very distinct facet of national security.

[Baroness Jones of Moulsecoomb]

I thank the Minister very much for those answers. I also thank noble Lords, who obviously did not agree with me, for their comments. This definition was meant to be a prompt, guidance, not something to be set in stone. Without a definition, I find it difficult to understand how we can describe anything that is necessary for the future well-being of the country. The whole Bill is based on a definition. However, if you have not described it, how can you be sure that you are doing the right thing? Nevertheless, given the explanation provided, I beg leave to withdraw the amendment.

Amendment 236A withdrawn.