Investigatory Powers Bill

Baroness Kennedy of Shaws Excerpts

Monday 27th June 2016 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have to say that I have had one of the greatest surprises in the course of this debate that I have ever had in this House. That was hearing my noble friend Lord Blunkett express humility—humility in relation to his efforts to deal with terrorism and with the efforts of this House to call him to book when he seemed to be going over the line. I did not quite recognise whether there was regret, but certainly he seemed to acknowledge that scrutiny of the efforts to deal with serious crime and terrorism is a very important thing to take place within our parliamentary system.

I welcome the Bill because it places the work of the intelligence and security agencies within a robust legal framework. As others know, I have spent a large part of my professional life dealing with high-level security cases, often involving terrorism, such as the transatlantic bomb plot not that long ago, which was mentioned by the noble Lord, Lord Reid. These were serious cases in which new technology was used by those who stood trial and where being able to intercept was clearly vital to the interests, safety and security of British citizens.

The noble Lord, Lord Rooker, suggested that the RUSI panel’s 10 tests might in fact be placed inside a pamphlet or a paper by the Government to show how the Bill complies with them. I strongly support that suggestion and think it would be a very helpful reassurance to many of those who have criticised the steps taken to deal with these sorts of issues.

There is no doubt that we have to be always vigilant when we are dealing with the rights and liberties of British citizens. When private exchanges between individuals are invaded, there are consequences for all of us, not just the individuals involved, because societies that create a dark state, with extensive surveillance powers, have always in the end reaped the consequences: authoritarian abuse, serious miscarriages of justice, the growth of political mistrust which always follows, and ultimately a crushing of the human spirit. I agreed entirely when I heard the noble Lord, Lord Macdonald, describing what this does to the lives of individual people, the way that it invades the creative and intimate lives of people—the stuff of people’s souls. So we have to move ahead but with great care because sometimes invasions of privacy are absolutely necessary but they should be rare and under strict regulation.

The areas in the Bill that cause me most concern have already been spoken to. They relate to the protections that there must be for communications essential to the fairness of the legal system and communications essential to freedom of the media. A citizen has to have the right to confer with a lawyer in confidence; I will not repeat the arguments that have been presented to this House by my colleagues in the law. My life as a practising lawyer doing these sorts of high-level, politically sensitive cases has made me pretty cautious about claims concerning national security because that can be an elastic notion, capable of being harnessed for questionable ends.

I am concerned that the definition of “exceptional and compelling circumstances”, and the draft codes of practice that have been put together, set the bar too low. These can be broadly and loosely interpreted and the risk is that the law will enable and encourage the routine acquisition, examination and retention of legally privileged communications. That should concern us. Currently such a practice is deemed unlawful but we know from the Belhaj case in 2015 that at times that has not stopped inappropriate behaviour. We should always remember that codes of practice are not law. They do not have legal force and they can be changed without parliamentary scrutiny.

What should concern us is that when the Government were pressed in Committee in April about what they really intended, and they gave examples, they seemed to say that the purpose was to obtain strategic intelligence. That is just not a justifiable reason for this legal change. It is, I am afraid, dancing to a tune that is not acceptable in a democratic society. We cannot allow it to be used to interfere in privileged communications between lawyers and their clients simply because there might be a possibility of coming up with something. There has to be something more than that. The Law Society, the Bar Council, Liberty and Justice are all pressing for amendments. The Government have said that they will listen and I hope they will.

I am also concerned about journalists and the protection of sources. I agree with the noble Baroness, Lady Liddell. There are problems because of the expansion of journalism into the internet, the arrival of blogging and the ways in which people claim the title of journalist who would not have fulfilled that definition in the past. However, we have to be cautious about enabling journalists to make the public aware of things that are happening in society which has to involve their giving promises of protection to their sources.

I welcome the fact that David Anderson has been invited to review the use of bulk powers. Like the noble Lord, Lord Lester, I think he is a truly honourable man. He has an independent mind and is an invaluable public servant. I am glad that he is responsible for the review and I look forward to hearing what he has to say.

Clause 1 re-legislates the criminal offence of hacking telephones that saw the conviction of the Prime Minister’s press secretary for conduct when he was the editor of the News of the World. Nine other senior journalists at more than one newspaper—indeed, at more than one newspaper group—were also convicted. There were hundreds, if not thousands, of victims of that criminal conspiracy, many of whom were ordinary members of the public whose privacy was grossly intruded upon in a wholly unacceptable way. It is right that that offence is re-codified in the Bill. It is not only the state that intervenes in people’s privacy.

Many victims of phone hacking have taken out civil claims based on the common-law tort of misuse of private information. The old RIPA included in Section 1 a statutory tort but that has not been re-codified in this Bill. Why will citizens not have that entitlement any longer? I hope the Minister will help us with an answer to that question and perhaps the tort may be reinserted in the interests of fairness to those victims.

As we have heard, striking the balance between liberty and security is hard. The best way to do it is with trusted oversight and transparency. I welcome the openness of the Government in seeking to meet the concerns and I look forward to the debate in Committee.