Investigatory Powers

Baroness Manningham-Buller Excerpts

Wednesday 8th July 2015 Lords Chamber

[Baroness Manningham-Buller (CB)]

My Lords, today’s debate is part of a continuing discussion on how best to ensure that we have robust and defensible legislation covering the intelligence work of the British intelligence and security community and the police. We all acknowledge that RIPA has its flaws and is out of date, but it was my service that argued for the necessity of legislation like this in 2000—against some departmental opposition—to ensure that we were compatible with the Human Rights Act. I say that because I and many of my former colleagues believe that having a proper legislative framework is critical for this work in a democracy.

I do not want to repeat many of the things the Minister said but I welcome this opportunity for us to continue the conversation that will go on through the autumn and when we see what the legislation looks like. I do not think now is the time to analyse minutely the substantial and carefully considered work of David Anderson and that produced in March by the Intelligence and Security Committee, which took a broader look at the subject. Of course, we await the outcome of the RUSI panel, which I believe we will see next week. We should thank it very much for that substantial amount of work. I really do not believe that everybody has read this report. It is an extraordinary piece of work. I admit to having read only chunks of it but we should be very grateful for what we have—I give this copy back to the noble Lord, Lord Blair.

I have only a few comments to make at this early stage. Obviously, when we see the legislation there will be more that one wishes to make. First, technology races ahead and the intelligence capabilities that we have had in the past and until recently are being eroded, not increased, and that heightens the risk. We need to be able to keep pace with and, where possible, get ahead of the terrorists, serious criminals and others. I have just started a book on ISIS, the subtitle of which is The Digital Caliphate, which tells us something very important. It is an accurate title.

I am pleased that both the parliamentary committee and David Anderson endorse the need for the existing powers, including bulk personal data and computer network exploitation, both of which have been critical to many terrorist and serious crime operations. The focus is rightly on the authorisation that should be needed for these powers to be used. They are not all here today but in this House are many former Ministers who have used these powers and carried this responsibility—I see the noble Lord, Lord Reid, over there, and the noble Lord, Lord King—and noble and learned Peers who have conducted the post-hoc scrutiny of warrants. I look forward to hearing their views and observations. My own experience is that those who had responsibility for authorising warrants for state intrusion into the privacy of the individual took that responsibility very seriously indeed. It was not an automatic process. I was often challenged by successive Home Secretaries and Northern Ireland Secretaries as to why a warrant was needed, and warrants were turned down.

David Anderson’s recommendation for judicial warranting for national security warrants within the UK is pretty attractive at first sight. It would shore up the interception legislation against legal challenge, and such a system is used in parallel legislation elsewhere in the world. I have thought for many years that we were likely to move in this way. I understand that it would be possible to make arrangements for a judicial response to be very rapid. We have to be agile; a warrant may be needed in a matter of 15 minutes if something appalling is to be prevented. But there is a real problem—and I look forward to seeing how the Government address this—over political accountability.

Let me give an example. The Home Secretary is asked by my former service to sign a warrant on a highly sensitive subject. She first looks to see whether the warrant is legal within the terms of the Act. She judges the intelligence case, which she has had described to her, but she adds something, which is a judgment of the political risk. She must decide whether the advantages and benefits of what this warrant might deliver outweigh the drawbacks if it all went badly wrong, because she knows that she is accountable to the other place if it so does. Judicial warranting, which, as I said, is at one level extremely attractive in taking this issue out of contention in many ways, misses that key part.

Whatever legislation we pass, either later next year or early the year after, I am confident that the security and intelligence agencies and the police will operate fully within its remit. MI5 argued for the Security Service Act, which we did not get until 70 years after our foundation. It is my strong view, as I said earlier, that a strong judicial framework is essential in a democracy. I am often asked whether the law inhibits security intelligence work. My reply is that it should be the foundation for it.