Data Retention and Investigatory Powers Bill
David Davis Excerpts(11 years, 3 months ago)
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Mrs May
The point about putting this beyond doubt in the legislation is obviously that it strengthens the ability to enforce in this area. The enforcement capabilities remain as they were previously—taking out an injunction against the company concerned, with the sanctions that that might entail. The position is not changing; what is changing is simply being absolutely without doubt that the extraterritoriality is there, because it is now in the Bill, rather than it being asserted by Government as having been the intention of the previous legislation.
I will now attempt to make some progress. I have made the point that urgent action is needed—
Mr David Davis (Haltemprice and Howden) (Con)
Before she moves on, will the Home Secretary give way?
Mrs May
What this Government are doing is putting into legislation the powers that we believe it is important for us to have so that we can protect the British public. I know that my right hon. Friend has some difficulties with some aspects of what the Government are doing. I think it is right that we continue with the powers that we have had to enable us to protect the public, keep people safe and ensure that we catch criminals, terrorists and paedophiles.
Action is needed to ensure that we maintain the capabilities that protect us from those who would do us harm. The Bill provides the legal clarity needed to ensure that the use of those capabilities can be maintained by doing two things: first, by providing the legal basis for us to oblige domestic companies to continue to retain communications data; and secondly, by putting beyond doubt the application of the law of interception to all companies that provide communication services to people in the UK, regardless of where they are based.
When I made my statement to the House last Thursday, I received considerable support from Members on both sides of the House. I am extremely grateful for that support and would like to pay tribute to everyone who has shown willingness to work together on an issue as important as the protection of the public. In doing so, let me also thank the right hon. Member for Leicester East (Keith Vaz), the Chairman of the Select Committee on Home Affairs, which I gave evidence to yesterday and which wrote last night to say that it supported the legislation. He indicated that he was sure that a successor Committee would want to look carefully at any legislation that was brought forward, but I am grateful to the Committee for its support on this particular matter.
Yvette Cooper
My understanding is that the Government do not keep metadata on UK citizens and that the data retention directive is about the information that companies hold, but I would certainly be very surprised if companies were able to separate out the billing data for MPs, for example, from that of any other British citizen. It would be startling if they were able to do so. My hon. Friend is right that one would expect things such as the data retention directive to cover not just MPs but all UK citizens in that way, but my point is that the Government cannot take for granted the need to restore the status quo. We need to debate it and we need reform.
My real concern about how the Government handled the issue is not only about the delay in introducing the legislation after the Court judgment in April and the limited time we have to debate it. It is bigger than that. It is about the Government’s failure to rise to the bigger challenge and debate of the past 12 months. They have said almost nothing in response to the Snowden leaks, to provide either reassurance or reform. They tried to limit the debate over the draft Communications Data Bill, drawing it too widely, and have never been clear about what they really wanted and needed to achieve. They have not faced the new challenges of the digital age and recognised the importance of changing technologies and expectations. They have not started a serious review of the legal framework or the powers and oversight needed. The Home Secretary made a speech a few weeks ago that set out some of the safeguards needed, but it has taken time for Ministers to do that.
Mr David Davis
The right hon. Lady is making an interesting point. Is not the implication of her last six sentences that the Labour party should support the sunset clause being brought forward to Christmas of this year, which would force the debate that she is asking for?
Yvette Cooper
I want to come on to that point in detail, because it is an important one. The wider considerations, the detailed review of the legislation and the public consultation that we need will take longer than just five months, and it is important that this is not simply about repeated sticking-plaster legislation. We need to have a sustainable debate about how to get the right kinds of reforms to sustain the framework for the longer term and, crucially, about how we get public consent in this.
In the US, they have had a public debate. President Obama led a debate on liberty and security after the Snowden leaks, setting up an independent review group last summer. His response robustly defended much of the work that the US agencies do as vital to national security, but he also recognises the need for stronger safeguards. Our system has many more legal safeguards than the US system. For example, our warrant system is much narrower than theirs, and rightly so. We also have strong public support for the work of our intelligence services and the police, but that is no reason to avoid the debate and hope that it will go away. That is what I believe that the Government have done since last summer.
Mr David Davis (Haltemprice and Howden) (Con)
It is a particular pleasure to follow my old sparring partner from east Yorkshire on this as much as on any other issue.
As I have only a short time, I shall focus on one issue alone out of the four that affect the Bill. When this Government brought a different but related Bill before the House, the so-called snooper’s charter, it was, frankly, an embarrassment. It was pilloried by the Joint Committee on the draft Communications Data Bill and heavily criticised by both MPs and Lords. One clear fact that arose from that review was that many thought that RIPA, the Bill upon which this legislation is based, was simply not fit for purpose, that it was too loose, and that if the snooper’s charter came before the House at some later stage, many would use it to rewrite RIPA. Certainly many Liberals thought that, and a number of Conservatives too, and some Members of other parties. That may be one reason why the Government are uncomfortable about giving this Bill a full procedure over several weeks, with a proper Committee and Report stage, and so on; because they may find that they get a tighter definition of RIPA than they previously had.
The House knows that I am not a great fan of the British Government being told what to do by the European Court of Justice or the European Court of Human Rights. I much prefer that British liberties—our freedom, our privacy—are protected by Parliament. But the harsh truth is that Parliament has been a weak defender of our freedoms this past 20 years, and the process we face today, crashing the Bill through the Commons in a single day—even more poignantly on reshuffle day; I see the empty Benches around me—is an awful demonstration of that. One consequence of that slack attitude is that we have bumped more and more frequently into treaty obligations and international court judgments against us, where Britain should be the shining example, not the villain of the piece. The Bill does nothing to correct that.
The Court, as a number of speakers have mentioned, branded the untargeted mass collection of our data—European rather than just ours—as a
“wide-ranging and particularly serious interference with”
our
“fundamental rights.”
It is arguably the case that, in some ways, Britain is the most extreme example of that across western Europe. Because the Bill does nothing to correct that particular aspect, it is likely to face legal challenge, and may well fail as a result. It will not be beneficial to security in this country if that happens.
Much of this failure hinges on the fact that access to communication data in this country is not subject to judicial approval. It is one of the differences between ourselves and America and some other European countries. It is approved by officers of the same organisation that request it. The result of that—the point that I think the hon. Member for Brighton, Pavilion (Caroline Lucas) was referring to—is that too many people have too much access, too easily, to too much data. That is the core point. Therefore, we use this power in that respect more often than many of our international colleagues.
There were 514,000 authorisations and notices reported in the RIPA 2013 report. It is difficult to compare countries, but to give a partial comparison—
Mr Jack Straw (Blackburn) (Lab)
I thought I heard the right hon. Gentleman say that those who authorised communication data requests were the same people as those who checked it. I think that the right hon. Gentleman will find that that is not correct. There is a system of surveillance commissioners who are there to do the authorisation, and the checking is done separately.
Mr Davis
That is not correct, I am afraid. The authorisation process does not go to the commissioners. It comes back afterwards to the commissioners.
The point about this is the numbers. The Americans, with whom we can partially compare, use only 39,000 to 57,000 references in a given year. In Europe, the country that least admires the privacy of its nationals is France. Its total metadata approvals is 35,958—36,000. If we add in all the other approval processes, it still comes to less than half of ours. So access to our data has insufficient safeguards. There is no prior review to access by a court or independent body, and after-the-event oversight—the commission oversight—is incredibly under-resourced. The intention was that data be used only for the purposes of prevention, detection or criminal prosecution of offences that may be considered sufficiently serious to justify such an interference. There are 100,000 prosecutions for indictable offences that face custodial sentences in the UK each year. About 80,000 end up in prison. We are talking about 500,000-odd approvals to deal with fewer than 100,000 prosecutions.
The Government seek to diminish the importance and sensitivity of communications data by distinguishing it from the content of the communications. At one time this firm distinction stood up and was credible, but now, because of technology, rather than going the other way and making things more difficult for the agencies, the scale of the internet and mobile phone technology has provided an intimate picture of people’s personal lives. In the ECJ’s words:
“This data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented.”
In other words, it is an incredibly intrusive piece of information.
As I said, I do not like taking lessons from the ECJ, but on this they are absolutely correct. These measures are just not proportionate. They were badly designed in 2000—I am sorry to say to the right hon. Member for Blackburn (Mr Straw)—and they have got worse with the passage of time and technology. The Government have not listened, and accordingly have left themselves open to legal challenge. While the Bill may be law by the end of the week, it may be junk by the end of the year.
Data Retention and Investigatory Powers Bill (Business of the House)
David Davis Excerpts(11 years, 3 months ago)
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Mr David Davis (Haltemprice and Howden) (Con)
To follow on from my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), I think that we are looking at a third category: a piece of legislation that is being renewed, but that has fallen into disrepute over the years in which it has been used. That is why this Bill is more important than a simple renewal.
There is an emergency—a legal emergency—but it started on 8 April. It was eminently predictable because, as far back as 2010, the European data protection supervisor said that the data retention directive was
“without doubt the most privacy invasive instrument ever adopted by the EU”.
Data retention has been struck down in Germany and Romania, and there have been difficulties in other countries. The two requests to the European Court of Justice came not from bogus organisations, but from the Irish High Court and the Constitutional Court of Austria. Those were therefore serious revisions and it was entirely probable that we would find ourselves in the situation that we are in today.
Why has it taken three months? Why was the legislation not pre-prepared? Why was the deal with the Labour party not struck in advance? My understanding is that there was an argument inside the Government between the two halves of the coalition. That argument has gone on for three months. What the coalition could not decide in three months, this House has to decide in one day. That seems to me entirely improper.
Communications Data and Interception
David Davis Excerpts(11 years, 3 months ago)
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Mrs May
I look forward to my appearance before the Home Affairs Committee, as I always do. I can give the right hon. Gentleman an absolute assurance on that. As I indicated earlier, this review will set the scene for legislation that will operate for some years to come, so it is essential that we get it right. We must see it in the context of the threats we face, look at the powers we need and then consider the right regulatory framework for those powers. I am clear that David Anderson will be given the resources he needs.
Mr David Davis (Haltemprice and Howden) (Con)
The Home Secretary has justified rushing this Bill through the House on the basis of an emergency. However, the case was put to the ECJ some time ago, and it took some time to reach its conclusion on 8 April, so if there is an emergency, it was a predicable one on 8 April. There has since been plenty of time to look at the 12 clauses that relate to data retention, so why is there an emergency now and not then?
Mrs May
As I said in an earlier response, there was always going to be a need for fast-track legislation. There was never going to be any possibility of taking the Bill through the House in the normal time scale, because of the potential timetable within which we would be losing access to this data. I also say to my right hon. Friend that of course the case was going through the European Court of Justice, but until it had given its determination, no one was absolutely certain what the result would be and what aspects it would raise. There was always the possibility that even if it did decide to strike down the data retention directive it would stay that decision for a period to give an opportunity for other legislative frameworks to be put in place by member states. In the event, it chose not to do that. It chose to strike down the directive immediately. As I said, we are clear that our data retention regulations stand, but we need to put it absolutely beyond doubt and ensure that we do not lose these important capabilities.
Oral Answers to Questions
David Davis Excerpts(11 years, 8 months ago)
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Damian Green
In no area of the public sector do we introduce quotas of the type the hon. Gentleman suggests—he will recognise as well as anyone that they could cause at least as many problems as they solve—but I agree that we need to do more, which is precisely why the College of Policing is taking practical steps to look at the best way we can achieve this.
Mr David Davis (Haltemprice and Howden) (Con)
May I press the Home Secretary on her answer to my hon. Friend the Member for Esher and Walton (Mr Raab) about the Police Federation? On the one hand, Normington made proposals that required legislation, but on the other hand, there are examples of the federation promoting injustice that Normington gave no answer to. Is there not a clear requirement for the Government to act on this matter?
Mrs May
As I said in response to my hon. Friend the Member for Esher and Walton (Mr Raab), the Police Federation is considering its response to the Normington review, and I look forward to seeing what it proposes to bring forward as a result of its consideration. The Home Office stands ready to make the necessary changes to enable the federation to put in place the right structure to ensure that it is truly representative of police officers.
National Security (The Guardian)
David Davis Excerpts(12 years ago)
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Julian Smith (Skipton and Ripon) (Con)
In the wake of the stolen Snowden files on America’s National Security Agency, it is right and proper that Parliament—both the House in general, and Select Committees in particular—debate the balance between national security and freedom of the press, and limits to and oversight of the power of our intelligence services.
This debate, however, focuses on a narrower and darker issue: the responsibility of the editors of The Guardian for stepping beyond any reasonable definition of journalism into copying, trafficking and distributing files on British intelligence and GCHQ. That information not only endangers our national security but may identify personnel working in our intelligence services, risking their lives and those of their families.
In August 2013, the Brazilian citizen David Miranda was stopped at Heathrow airport under schedule 7 to the Terrorism Act 2000. Initially, The Guardian claimed that he was targeted merely because he is the partner of Glenn Greenwald, the Guardian reporter writing about the leaks. Mr Miranda had been held for hours, The Guardian said, and denied a lawyer, but within hours that story had unravelled. When challenged, the paper first added to its story that it had paid for Mr Miranda’s flights, but did not note in its story that that correction had been made. Later that night, after all the print deadlines had passed, The Guardian admitted that Mr Miranda had been offered a lawyer and had refused one, and that The Guardian had known that all along yet had allowed its false account to stand.
Following the Heathrow stop, a judge ruled that police were entitled to copy and analyse the documents and files carried by Mr Miranda that were in the national security interest. There is to be a court case later this month on the detention and whether the Act was used appropriately. That issue, of course, will be for the court to determine.
Oliver Robbins, deputy National Security Adviser in the Cabinet Office and security adviser to the Prime Minister, has described in a witness statement to the court case on Miranda the direct threat to the life of Government employees posed by the documents held and communicated by The Guardian, together with the grave threat to UK national security should they be released. In his statement, he lays out the careful, proportionate steps that Her Majesty’s Government have taken to engage with the newspaper and to agree protocols for future reporting, be it direct communication or the defence advisory notice system.
Mr David Davis (Haltemprice and Howden) (Con)
If my hon. Friend really is concerned about risks to British security, is he not concerned that UK Government secrets are accessible to hundreds of thousands of US Government employees? Perhaps that is why Mr Edward Snowden, a 29-year-old contract employee of three months’ standing, was able to access GCHQ files from Hawaii.
Julian Smith
I agree that the NSA placed itself in a very odd situation.
The next step was to secure the documents and data, as there was a real fear that terrorists would seek to access that information by targeting The Guardian, and the Government had no confidence in the paper being able to protect the information it held. Unfortunately, the Government were not the only people making that assessment. The WikiLeaks hacker Jacob Appelbaum, who has worked with Glenn Greenwald, has tweeted repeatedly about the non-existent security under which Guardian editors held those files. Last week, he pointed out that laser microphones are routinely used as listening devices through windows and that The Guardian’s so-called secure room has floor-to-ceiling windows ideal for such remote listening by any interested foreign power or terror cell.
On 3 October, Mr Appelbaum tweeted:
“I’ve seen the horrible operational security at the Guardian over the last three years—it makes the New York Times look solid.”
And he scoffed:
“They shipped Top Secret documents by FedEX.”
Hackers have heavily implied on social media that they can access The Guardian’s US files.
James Brokenshire
In his witness statement to the High Court during the judicial review of the police’s decision to stop David Miranda at Heathrow airport in August, deputy National Security Adviser Oliver Robbins also spoke of the damage caused by the disclosures. He noted that the material seized from Mr Miranda is highly likely to describe techniques that have been crucial in life-saving counter-terrorist operations and other intelligence activities vital to UK national security. If those techniques were compromised, it would do serious damage to national security and ultimately risk lives. Those releasing this material would do well to understand that the types of capability they are writing about are those we have relied on in recent years to stop terrorist plots, disrupt organised crime and put cyber-criminals, including those exploiting children or illegally proliferating arms, behind bars. Once an adversary knows if and how we can read their communications, they will change their behaviour. When it was revealed that the US could read Osama Bin Laden’s communications in the late 1990s, we did not hear from him again until September 2001.
I cannot go into more detail of the damage done and the future damage, but we expect to lose coverage of some very dangerous individuals and groups. The threat remains very real, and only through the tireless efforts of the police and intelligence agencies do we keep at bay those who wish us harm. If we are to protect the British public, we need to be a step ahead of the terrorists and the criminals. Secret intelligence gives us that edge and, regardless of whether Snowden is thought to be a whistleblower or a traitor, revealing our capabilities destroys it.
James Brokenshire
I am grateful for my right hon. Friend’s intervention. It is right to say that it is obviously not for Ministers to direct the police to arrest or investigate anyone. He will understand that that would be inappropriate. It is for the police and the Crown Prosecution Service to determine whether a crime has been committed and what action to take. Given the ongoing police investigation after Mr Miranda was stopped at Heathrow, it would be inappropriate to comment further. Ultimately, it is for the police and the Crown Prosecution Service to assess the evidence.
I want to comment briefly on the Government’s approach to The Guardian, which claimed to hold highly classified Government material and made clear its intention of reporting it. Of course, we were concerned about such material being held insecurely without any of the controls that would usually protect it. We were also concerned about the consequences of more of this material becoming public, and the grave risks that that would pose to operations, individuals and capabilities. That is why we asked the newspaper to return or destroy its files.
I appreciate and respect the fact that journalists may spend significant time weighing up whether an issue is damaging to national security, and genuinely believe that they are doing the right thing. However, I respectfully suggest that they are simply not in a position to make national security assessments. The Government strongly support a free press. We have never denied the possibility of a debate on privacy and security or the work of the intelligence agencies, but we cannot condone the way in which others sought to bring this debate about and the damage it caused. Any leak of security material is serious. It can put the lives of our agents at risk and give valuable information to terrorists and others who wish us harm. As we have heard, there have been calls to prosecute, but that is not a matter for me; it is a matter for the police and the Crown Prosecution Service to assess.
Oral Answers to Questions
David Davis Excerpts(12 years, 4 months ago)
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Mr David Davis (Haltemprice and Howden) (Con)
T5. When News International was allowed to buy The Times newspaper, the condition was set that the editor could not be changed without the explicit approval of the non-executive directors. In the event that such a convention was broken, what would the Secretary of State’s powers of intervention be?
Maria Miller
My right hon. Friend will know that John Witherow has been appointed as acting editor of The Times. Appointing a new editor of The Times is a matter for the independent national directors and shareholders. There would be an opportunity to intervene to enforce the requirement for separate publications to be maintained; that is really where my powers come into play.
Oral Answers to Questions
David Davis Excerpts(12 years, 4 months ago)
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Damian Green
This is an investigation done partly by the Metropolitan police, who are operationally independent, and by the Independent Police Complaints Commission, so it is not for Ministers to set timetables. Indeed, I urge the House to recognise that to ask Ministers to intervene closely and in detail in the work of operationally independent police forces or the IPCC would be the wrong way to go.
Mr David Davis (Haltemprice and Howden) (Con)
In view of the revelations of the past week, will the policing Minister put in place a strict disciplinary code that requires all police officers of all ranks to keep a comprehensive and accurate record of all contacts they have with the press?
Points of Order
David Davis Excerpts(12 years, 10 months ago)
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Mr David Davis (Haltemprice and Howden) (Con)
On a point of order, Mr Speaker. I raise this point of order with you in respect of your duty of defending the interests and rights of Back Benchers and Committees in this House. This morning in an interview in The Sun newspaper, the Home Secretary, who I see is on the Treasury Bench, said the following about the Communications Data Bill:
“Criminals, terrorists and paedophiles will want MPs to vote against this bill. Victims of crime, police and the public will want them to vote for it. It’s a question of whose side you’re on.”
She also said:
“Anybody who is against this bill is putting politics before people’s lives.”
A Joint Committee of this House and the other House is meeting at present to pass comment on this Bill. Therefore, apart from traducing a large number of Members of this House, the Home Secretary is undermining the work of that Committee. Has she asked to come to the House to explain herself, and if not, what can you do to protect us, Mr Speaker?
Sir Menzies Campbell (North East Fife) (LD)
On a point of order, Mr Speaker.
Intercept Evidence
David Davis Excerpts(13 years ago)
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Mr David Davis (Haltemprice and Howden) (Con)
It is a privilege to follow the right hon. Member for Tottenham (Mr Lammy), who has done a sterling job of making the basic case, and, perhaps in some ways more importantly, of defending the interests and rights of his constituents, some of whom feel very aggrieved after the events of last year. I shall speak more briefly than he did and try to wrap around his argument, but hon. Members should forgive me if I repeat one or two things he has said.
The primary distinction between the great democracies of modern times and the totalitarian states is how they treat their citizens. We believe we treat our citizens in a civilised way compared with the totalitarian states—they will imprison, torture and, in the final analysis, kill without trail, whether they are Soviet or Nazi states, or any of the other species or flavours of totalitarian state that we have been unfortunate to see in past decades.
Emotionally, we might believe that we do not do those things because we are nicer people than they are, but the reason for the distinction—between totalitarian states and our state and similar ones such as America—is simply the rule of law. If colleagues want to test that, I suggest they consider the operations of the British state when it has operated outside the constraints of the rule of law, such as in Kenya during the Mau Mau rebellion, when well brought up, well educated, and no doubt expensively educated, men—it is always men—acted with a brutality that would have done justice to some of the totalitarian states to which I have referred. The rule of law prevents that by exposing acts of the state to judicial challenge and questioning, and that process is never more important than when a citizen of the state dies at the hands of an agency of the state. Since the 1997 general election, 38 people have been killed in Britain by police forces. In most cases, the inquest gave a verdict of lawful killing. In one that I am aware of, the Jean Charles de Menezes case, there was an open verdict, and some, of course, are still outstanding.
Although I will be critical of agencies of the state, I want to make one point: I am not criticising police officers operating on the front line as parts of the armed response units. Their job is sometimes terrifying. I was critical of what happened in the Jean Charles de Menezes case, but the policemen involved went on to a tube train not knowing whether the man they were seeking to apprehend was carrying a bomb that would have killed everybody on the tube train, including themselves. In other circumstances, the armed response units are deployed when they do not know whether the people they are seeking to apprehend or stop will shoot them or use armed force against them. It is easy in the cold environment of the Chamber not to understand the terror, fear and pressure on people in those circumstances. What I am about to say, therefore, is not a criticism of them.
That is not an excuse, however, for not knowing the full facts after the event or for pulling our legal punches. It is an absolute requirement that the killing of a British citizen by an agency of the state be properly and publicly reviewed, with access to all key data. That is the case for all sorts of reasons, some of which the right hon. Gentleman listed: to ensure that it is never done improperly and that there is never a deliberate killing by the state; to ensure that errors and accidents are never repeated; and to ensure that systemic failures are not repeated—very much an issue in the Jean Charles de Menezes case, and possibly an issue in the two cases to which he referred, the Rodney and Duggan cases.
Also, not equally important but still massively important, it is necessary to ensure that the public, the families and the communities from which the people come have confidence in the system. The mother of a young man who has been shot should never feel that her son has been judicially—or, indeed, extra-judicially—executed. I am afraid that, in at least one case, that appears to be the situation. It is essential, therefore, that we have an open and fully informed inquest after every single fatal operation of the state against an individual, because that is what keeps us a civilised state. As the right hon. Gentleman said, in two cases that is either not possible or likely not to be possible: the Azelle Rodney case, which has already gone to a judicial inquiry, and potentially in the Mark Duggan case.
As outlined, the Regulation of Investigatory Powers Act 2000
“specifically bars any evidence in court, or any question, assertion or disclosure in legal proceedings, which results from warranted interception or would reveal that warranted interception had taken place.”
As the right hon. Gentleman said, that is an incredibly draconian restriction. That quotation came from the Chilcot committee’s summary. As a result, the Azelle Rodney case has gone to judicial inquiry, and, as I said, the Duggan case might well follow suit. This is a massive problem for the families and communities involved, but it is also a massive problem for open justice and a handicap for our national security.
Some years ago, my hon. Friend the Member for Esher and Walton (Mr Raab) and I went to the United States to talk to people about the whole question of the use of intercept. We talked to the National Security Agency, to the FBI—I think—to the Department of Justice and to the National Counterterrorism Centre. I have probably forgotten some of the other organisations, but every one of them said exactly the same thing: in summary, they could not do their jobs without the use of intercept in court. If I can quote him approximately correctly, the Department of Justice representative said, “If we go to a case”—either a major gang case, a major gangsterism or organised crime case, or a terrorism case—“and there is not intercept, the jury wonder what’s happened. They wonder why we have not got the intercept.” The idea that the criminals involved do not know that intercept technology is being used is therefore laughable—I use that word carefully. I will come back to that point.
Incidentally, the Department of Homeland Security is another place we went to. The homeland security gentleman we spoke to—I cannot remember whether he was the deputy director or the head, but he was one or the other—said he could not understand why the British took the stance they took. It was quite clear that, for the Americans, intercept was not just a marginal advantage; it was a massive advantage in the fight against organised crime and terror. Similarly, the Australian evidence—we did not go to Australia—is much the same. There are some categories of case that simply cannot proceed without intercept—in particular, cases involving the importation of drugs. Again, the Australians said that anybody who does not use intercept is not acting seriously—that was the phrase of, I think, the director of public prosecutions federally in Australia.
We are the only major democracy to have such a bar to the use of intercept evidence. The arguments are essentially twofold. First, if criminals knew they were being intercepted, they would cease to use the telephone or whatever medium was being intercepted, and that would lead to the loss of valuable intelligence. The right hon. Member for Tottenham made suitably short work of that viewpoint in his argument. Secondly, criminals might be able to work out the methods by which the intercept evidence had been obtained if it were used in court.
In a minute I shall quote at some length from Lord Lloyd of Berwick; I should remind the House that he was a senior Law Lord and head of the Security Commission for most of the ’90s. He was the man whom the last Conservative Government asked to review the entire sweep of terrorist legislation and to revise it for them, and the last Labour Government implemented everything he recommended. That is how authoritative this man is. He is the man who knows more about this subject than anybody else in Britain—full stop—and he has tabled a Bill in the Lords to try to bring forward the change in the restriction that we are debating.
Lord Lloyd of Berwick said the following about the legal position:
“In common with every other common-law country, we have developed a means of protecting sensitive information that is thought to be at risk in some way. The principle is called public interest immunity; there is nothing new about it. It is well understood in the courts. I do not say that it is used every day but it is used very frequently.”
He then set out where it came from and said:
“It is inconceivable that a judge would order documents to be disclosed, or information to be discovered, that would reveal methods used by GCHQ and other agencies. If the judge went off his head and did so order, the prosecution would at once appeal to the Court of Appeal, which would put the situation right.”—[Official Report, House of Lords, 16 March 2007; Vol. 690, c. 967.]
That is clear and it is clearly correct. In fact, throughout the entire period, over decades, when we faced the Soviet threat, which, I have to say to the House, was much bigger than the al-Qaeda threat—it was more sophisticated, more dangerous and more existential—never once was what Lord Lloyd of Berwick described broken. Never once did a judge release into the public domain the sorts of the things that we are concerning ourselves with in this debate.
Those who support the current ban then say, “But the European Court of Human Rights can overrule us and release this information to the criminals and the terrorists.” Actually, that is not the case. Using British criminal cases alone, we have clear direction and precedent. In Rowe and Davies v. United Kingdom 2000, the ECHR clearly stated that
“as the applicants recognised, the entitlement to disclosure of relevant evidence is not an absolute right. In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. In some cases it may be necessary to withhold certain evidence from the defence so as to preserve the fundamental rights of another individual or to safeguard an important public interest.”
I have not seen that put any clearer in any British court—that was the Strasbourg Court’s view—and that was not the only case. Almost exactly the same words were repeated in a subsequent case, Botmeh and Alami v. United Kingdom 2007. As Lord Lloyd said,
“there is no absolute right to disclosure: disclosure is always subject to the overriding interest of national security.”
Before I go on to outline the other inconsistencies, I want to point out that I think it highly unlikely that the ECHR would ever instruct us to release information. I know of cases in which it has admonished Governments for the destruction of information, but I know of no case in which it has instructed them to release it. Even if it did so, we demonstrated pretty clearly in a Backbench Business Committee debate on prisoners’ votes some time ago that, if the House so decides, it can defy an ECHR judgment if it thinks that it is against the national interest. At the end of the day, that is our final recourse. I cannot imagine the House doing anything other than voting against disclosure, if we were instructed to release such information. There has been a tendency for the agencies, which are understandably nervous of exposure to the courts, to overstate the risk. That was the one weakness in the otherwise powerful Chilcot report.
It is an astonishing inconsistency, as the right hon. Member for Tottenham pointed out, that we can use foreign intercept evidence but not our own. A stark and, frankly, embarrassing example of that came to light after the Heathrow bomb plot, when the agencies had to obtain from Yahoo in California parallel intercept evidence to the evidence that I suspect they had in their own files. I cannot say that they had it, but I suspect that they did. I cannot think of a more laughable demonstration of the stupidity of the policy than our having to go to a foreign country to get evidence that we almost certainly already had.
A second inconsistency is that we can use bugging, as the right hon. Gentleman also pointed out. If my telephone call to my hon. Friend the Member for Esher and Walton were intercepted, that evidence could not be used, but if there were a bug in my phone, the evidence could be used. Is one more secret than the other, or more dangerous to disclose? I think not. We might want to withhold from criminals the knowledge that we were using a laser microphone and interferometry —a high-tech mechanism—but we could use that evidence in court, whereas we could not use intercept evidence. That strikes me as laughable.
There is a third aspect of the matter that is laughable. The right hon. Gentleman said that GCHQ was a competent and capable organisation, and I agree with him. However, in this type of work, which is complex but not incomprehensible, our sophistication, capability, skills, innovations and edge are all a function of the amount of money that is spent. That is why we spend more money on GCHQ than on the other two agencies put together, but that is as nothing—a drop in the ocean—compared with what the American agencies use. They have no problem at all with placing their information in the public domain.
Furthermore, we have the internet. Any terrorist or criminal operating in the UK can look on the internet and find examples of the things that we are supposed to be concealing. Let me provide a topical example. The other day we were told about a particular technique that one of the agencies wanted to protect. For obvious reasons, I cannot talk about it, but just out of curiosity I googled it. Guess what? There is an article about it on an American site, outlining exactly how it happens and how it is used. If our criminals and terrorists want to know about this technique, they need only reach for that fierce weapon of a Google search. This is simply ridiculous; we are hiding things that everywhere else in the world are in open sight, and I do not believe that we have skills so much greater than those of our allies and contemporaries to justify protecting ours above and beyond theirs.
In my opinion we can safely allow intercept evidence in court without jeopardising our intelligence-gathering techniques above and beyond where they are now. However, my opinion is as nothing in comparison with the learned judgments of the most eminent security commission in modern times, for a start, and of at least two previous Directors of Public Prosecution, not to mention past Attorneys-General—I was corrected on the language by my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips)—previous heads of the Met, previous incumbents of Her Majesty’s inspectorate of constabulary and a whole series of people who have been up close and personal with these issues. All of them want to use such information in court. I take their opinion with at least as much seriousness as I take the opinion of currently operating agencies which might be embarrassed about coming out into the public domain.
These experts, moreover, point to fact that every major country uses such evidence without risk. It allows serious terrorists and criminals to be apprehended and convicted and, as has been intimated, the head of every single one of five mafia families in New York is now in prison. That would not be true without intercept. There are terrorists in prison today who would not be in prison without intercept. That is true in every country from America to Australia.
The previous Government saw this problem as a serious handicap to our system—I give them that credit; I think they were open-minded about this—and set up the Chilcot Privy Council review of intercept evidence, which recommended careful reform of the law to allow the use of such evidence in court. I have some quibbles with it, but I think it is a pretty good report generally. That decision was then derailed by the Government’s and agencies’ over-interpretation of a case, Natunen v. Finland, in which the European Court on Human Rights rebuked the Finnish Government for destroying exculpatory intercept evidence.
The ECHR was right to rebuke the Finnish Government on that. Evidence was not forced into the public domain, because it had already been destroyed. The Finnish Government took it on the chin and changed the basis for treatment pretty much straight away by introducing a judge to decide the process. That is fine. That Government have continued to use intercept. Since then, nothing has happened in Britain. As a result, the inquest over Azelle Rodney has been disallowed, and we now have a judicial inquiry. To remind Members of what happened to Azelle Rodney, he was shot with an assault rifle from a range of only 15 metres about half a dozen times. He died. Guns were found in the car he was in, so there might well have been good reason for the action taken, but we will never know because of this foolish and unwise restriction. As a result, his family is in a permanent state of grief, which will never be allayed by a judicial inquiry. If we do not put this right, the family of Mark Duggan and his community will be in the same position.
It is time to put this matter right, and time we allowed these communities, families and people to know the truth, whatever the truth may be. It is also time that we gave the wider national community the enhanced security that would arise from a reform of the law, and the added protection that intercept evidence gives them—the ability to prosecute and convict serious criminals and terrorists. Finally, it is time we stopped asking our judicial authorities to act with one hand tied behind their back, and gave them the right to operate the law as it should be operated—with full knowledge of, and full insight into, the issues they have to resolve for us.
Mr Raab
I think it is the only way I will get promotion these days.
It is an anomaly that we have so many other sources of sensitive information that can be used in UK courts. What is so special about intercept evidence? The objections to its use—certainly those from Chilcot and other reviews—cluster around three or four issues. We have heard about article 6, the threat of disclosure of sensitive sources and the inadequacy of public interest immunity, but the truth is that every other jurisdiction that uses intercept evidence has a killer back-stop: if they fear disclosure, they drop the charges. There is zero risk of disclosure because the option of dropping charges and dropping a prosecution is always available.
Another argument that has been made ad tedium is that a disproportionate part of the resources of the intelligence agencies, particularly GCHQ, would be absorbed, but that argument, which relates to transcription of the evidence, has been made almost totally redundant by modern information and communications technology and the ability to use it to store data and subsequently search it. That argument has therefore fallen by the wayside, but even so, the senior prosecutors I mentioned have made the point that the costs, to the extent that there are costs involved, are more than offset by the increasing number of people who plead guilty as a result of the use of intercept evidence.
I will refer briefly to the Natunen case, because there has been a huge amount of misreporting of its impact and what it really means for the use of intercept evidence. The 2009 Home Office report, and other GCHQ sources, point to the Natunen case and claim that it requires
“full retention of all intercepted material”
just in case it might include something that shows a suspect is innocent. That is simply an inaccurate reflection of the Strasbourg case law. In the Natunen case, which concerned a drug dealer who was convicted in Finland using intercept evidence, the Strasbourg Court emphasises that
“disclosure of relevant evidence is not an absolute right”,
acknowledging
“competing interests, such as national security or the need to protect witnesses”.
The Court stated that it was not its role
“to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them.”
Far from requiring “full retention”—this is the key point—the Strasbourg Court required that defence requests for disclosure of sensitive evidence be backed up by “specific and acceptable reasons”. The intelligence agencies would need to retain some relevant material. However, the Court made it clear that that necessitated neither defence access to that evidence nor the wholesale retention of all intercept material. In the Finnish case, it merely required that a judicial body approve the destruction by the intelligence agencies of relevant intercept material, collected over a limited three-week period. Frankly, I think that the Natunen case has been blown out of all proportion.
The real issue—I do not think that the agencies are making this up—is not the Aunt Sally or the false reasons that have been put up and are rebutted by the empirical evidence. The real reason is that GCHQ, which was originally an intercept organisation confined to the military zone, has had its functions broadened to include counter-terrorism and other serious crimes. Its role has increased exponentially. I can see why it worries about lack of focus and the huge competing obligations being placed on it with finite resources, notwithstanding the increases in its budget. I understand that, but that is a strategic issue of tasking intelligence, not a technical issue of viability.
Likewise, the fact is that we face a cultural shift with regard to law enforcement and the division between intelligence and prosecution. It is a shift that has taken place in other countries but that our authorities have not yet to bridge and overcome. There is a cultural aversion in this country to combining intelligence with prosecution, and I think that we have to overcome it.
Mr David Davis
I have long thought, partly as a result of the Northern Ireland experience, that our intelligence agencies are predisposed to go for disruption rather than prosecution. The whole nexus of the things my hon. Friend describes, their attitude to the use of intercept evidence and the problems addressing the exponential increase in GCHQ reinforce that. Does that not support the argument that a step change is needed from a disruptive approach to a prosecutorial approach, which is clearly what the Americans do, and with more success than us?
Mr Raab
I thank my right hon. Friend for his intervention and agree entirely. The other point to make is that the disruption model that has previously been used was shown to fail because of the huge increase in the number of terrorism suspects that successive heads of MI5 made clear in the public annual reports.
I am conscious of the time and want to make two points in closing. First, I think that the use of intercept evidence is not just confined to inquests, as important as the points made by the right hon. Member for Tottenham are, and not even just to counter-terrorism. We have seen in relation to the LIBOR scandal an incredible situation in which rate rigging, according to the Government’s proposals, now requires a separate criminal legislative proposal. I find it astonishing that it is not an evidential issue, rather than the lack of a criminal base.
Again, if we probe a little further into the work of the Serious Fraud Office and the Crown Prosecution Service, we find a very sleepy prosecutorial approach. Conviction for fraud by company directors fell by 48% between 2004 and 2010. Convictions for fraudulent accounting, which seem to me to be exactly what the rate rigging scandal was all about, fell by 77%. We need to wake up and stop having this interminable debate, which feels like a legislative version of “Groundhog Day”, about intercept evidence, to get on with lifting the ban and to use that evidence. The justice system is a weapon for, not an impediment to, law enforcement, and intercept evidence in prosecution must lie at its heart.
Diana Johnson (Kingston upon Hull North) (Lab)
I congratulate my right hon. Friend the Member for Tottenham (Mr Lammy) on an excellent speech. He was, as usual, a very powerful advocate for his constituents and his constituency, and for open justice, which is very important. The right hon. Member for Haltemprice and Howden (Mr Davis), a near neighbour of mine, made his usual compelling case for open justice and cogently set out the key issues in this case.
The debate overall has been of an extremely high quality, with excellent contributions from across the House. My right hon. Friend the Member for Torfaen (Paul Murphy) made a very good speech based on his own practical experience and knowledge in a number of roles. It was telling that he said that this is not an easy matter and that we need to keep on looking very hard at the use of intercept evidence. The hon. Member for Esher and Walton (Mr Raab) set out a strong case for the motion and drew on his experience in the US. My hon. Friend the Member for Poplar and Limehouse (Jim Fitzpatrick) asked exactly the right questions, drawn from his practical experience with the police, about why we are not doing this and how we can move it forward. The hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) spoke briefly about civil liberties and, in particular, control orders. I want to return to his comments later.
Over recent years, successive Governments, and particularly Home Secretaries, have grappled with the problems of trying to get intercept evidence into courts, and it has also been considered by the Privy Council review, so it is absolutely right that Parliament is debating the matter. We have heard at length about the benefits that might reasonably be expected to result from the use of intercept evidence in courts and inquests as regards, for example, increases in the number of successful prosecutions in serious organised crime and terrorism cases. However, the debate must cover not only the benefits but the difficulties involved, including the risks, such as exposure of interception capabilities and techniques, the resource implications of any changes in the law, and the implications of new communications technology. While the United Kingdom continues to struggle to find a way of accommodating intercept evidence in court, other countries, as we heard from my right hon. Friend the Member for Tottenham and the right hon. Member for Haltemprice and Howden, allow such evidence, and it is important for us to see what we can learn from those jurisdictions.
This is a very unusual issue. Successive Governments, the Privy Council and leading lawyers have long supported the principle of allowing intercept evidence, but none has been able to come up with a satisfactory model for the admission of such evidence without compromising national security. Labour has long supported the principle of allowing intercept evidence into courts. Indeed, the current push to find a way of doing this was started by my former right hon. Friend and Home Secretary, John Reid, the then Member for Airdrie and Shotts, in 2007, and that commitment was reiterated by my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) when he was Home Secretary. In opposition, my right hon. Friends the Members for Morley and Outwood (Ed Balls) and for Normanton, Pontefract and Castleford (Yvette Cooper) have reiterated Labour’s desire to see intercept evidence in court and to work with the Government in a constructive manner to achieve that. I restate that commitment.
It is clear that there would be significant benefits in allowing intercept evidence to be admissible in a wider range of courts than is the case at present. In particular, it would be desirable to allow the use of intercept evidence in criminal proceedings and inquests.
I am sure that we all sympathise with the Duggan family, who, as my right hon. Friend the Member for Tottenham has said, have unanswered questions. Understandably, they and the community in Tottenham want answers as to how Mr Duggan died, but without an inquest those answers cannot be provided. The Government have proposed secret inquests in which intercept evidence would be admissible, but that would not solve the problem—not only do we need justice to be done, but we need it to be seen to be done. I hope that the Minister will update us on the progress that he has made on this particular issue and I look forward to hearing his comments.
Allowing intercept evidence would seem to support two fundamental principles of British justice. The first is that courts should always have the best evidence available to them, and the second is that all crimes should be dealt with by the same legal system and guided by the same principles. We should, wherever possible, ensure that our legal system is able to protect national security and uphold standards of justice.
We would also like the use of intercept evidence to lead to practical outcomes, such as more prosecutions, particularly for serious crimes and terrorism. It is generally accepted that allowing intercept evidence would have a significant impact on some trials, facilitating some prosecutions and making others more likely. Indeed, the Crown Prosecution Service thinks that allowing intercept evidence would result in more prosecutions and more convictions, and it foresees time and money being saved as a result of more guilty pleas. We would particularly like to see the prosecution of cases that could not otherwise be tried, including those in which intercept evidence has led to a prosecution, but not necessarily for the most serious crime committed. It is often cited that allowing intercept evidence would reduce the need for other measures aimed at countering terrorism, namely pre-charge detention and terrorism prevention and investigation measures, or control orders as they were formerly known.
We should not, however, overstate the practical benefits of allowing intercept evidence. I now want to turn to the point that the hon. and learned Member for Sleaford and North Hykeham made about control orders, or TPIMs as they are now known. The noble Lord Carlile, the independent reviewer of terrorism legislation, was unequivocal in saying that he felt that intercept evidence would not have made control orders obsolete. That was backed up by a report by an independent counsel commissioned by the Home Office. It concluded that allowing the use of intercept evidence would not be enough to facilitate trials in any of the cases of the nine people who were subject to control orders at the time. Indeed, the Privy Council concluded:
“We have not seen any evidence that the introduction of intercept as evidence would enable prosecutions in cases currently dealt with through Control Orders.”
Mr David Davis
I will put to one side one of the weaknesses of the Privy Council report, namely its assessment of the effectiveness of intercept in prosecutions, and take up the issue of control orders. When we eventually allowed the use of control orders, our presumption when in opposition was that they would allow the control of people who could not be prosecuted in the courts because the available evidence—in other words, intercept evidence—could not be used there. Now we are being told that such people are having their freedom removed on the basis of, in essence, suspicion, because there is nothing beyond intercept other than suspicion. Members on both Front Benches are in a Catch-22 situation: either intercept is effective in dealing with control orders, or control orders are being imposed on the basis of suspicion alone.
Diana Johnson
The right hon. Gentleman raises an issue that could be debated for many hours. I think that his first point—that evidence was available—is the correct one. However, a review has taken place and the view of the independent counsel, who was commissioned by the Home Office, is that what the right hon. Gentleman has said is not correct. I have only limited time left, so I will move on. We will have to differ on that.
The number of criminal cases in which intercept evidence might be used is limited. An independent survey conducted in 2004 concluded that allowing intercept evidence would secure no more than 20 to 30 additional convictions a year.
Under the current arrangements, intercept evidence is of significant use for the protection of national security and the detection of serious crime. The Privy Council’s report into intercept evidence gives an excellent summary of the importance of wiretapping to UK law enforcement agencies. Under the current arrangements, the UK is able to benefit from intelligence gleaned from wiretapping, without compromising intelligence capabilities. Wiretapping often facilitates the collection of other admissible forms of evidence.
The Serious Organised Crime Agency has stated that
“interception, together with communications data, is the single most powerful tool for responding to serious and organised crime.”
It is because the current regime is so successful that the Metropolitan police currently secure a conviction in 88% of cases where they have employed intercept evidence. It estimates that that would rise only to 92% if intercept evidence were to become admissible. The more sophisticated criminals become, the greater the need for more advanced detection techniques and the greater the need to protect those intelligence techniques.
Of course, we cannot discuss individual cases or the evidence involved in them in Parliament, but it is clear from independent studies that law enforcement and Security Service agencies have provided numerous examples of intercept evidence having been used to apprehend wanted criminals, seize drugs or stolen property, or alert law enforcement agencies of planned criminal activities, enabling them to gather the admissible evidence that they require. We must recognise the important role that wiretapping already plays in the fight against crime and terrorism, and the importance of not jeopardising that success. The Privy Council stressed its belief that:
“The overriding objective should be to promote national security.”
That has been the position of successive Governments, and is the position of the Opposition.
If there was an easy solution to this problem, it would have been produced, but there is not. I will touch on a few of the issues that have prevented previous Governments from allowing wire-tap evidence in court. I hope that the Minister will update the House on what progress has been made on each issue. How can we allow the use of intercept evidence in courts, while protecting the most sensitive information which, if made public, would reveal a particular intelligence technique or source, and while upholding the principle of the equality of arms, under which the defence must have access to and be able to present all the relevant information?
The central desire is to protect the work of the security services and the techniques that they use. Proponents of the use of intercept evidence often counter that by saying that criminals are already aware of the intelligence services’ ability to intercept calls. However, the Privy Council rejected that point and said that criminals’ knowledge is currently conjecture based on rumour and that, while a few of their presumptions may be right, the evidence is that most of them are wrong.
Partnership is important. Earlier, I set out some of the successes of the current regime. Those are based on partnership between law enforcement agencies and the security services, between the UK and our international allies, and between state agencies and communication service providers. There is concern that any attempt to allow intercept evidence in court would jeopardise those successful partnerships. Indeed, some communication service providers have indicated that it would make them much less willing to co-operate. I hope that the Minister will respond to those points.
Much has been said about other jurisdictions. I would appreciate it if the Minister again set out clearly the unique position of the United Kingdom’s legal system, which is very different from that of some of the other countries that have been cited, such as France and Spain.
In conclusion, we all want to have intercept evidence in court. We want answers for the families of those who have died in controversial circumstances, where an inquest cannot take place. However, we have to acknowledge that this is a complex process and that at stake is a system that has delivered a lot towards the protection of our national security and in tackling international crime. It is not clear that any other country uses intercept-gained evidence as effectively as the United Kingdom.
The Opposition will of course work with the Government to get intercept evidence into courts without compromising national security, and international examples, particularly from Canada and the US, give us some indication of how that might be achieved. I hope the Minister will be able to update the House on the progress that the Government have made towards that end, and particularly on what plans he has to allow inquests such as Mark Duggan’s to take place; what processes are currently under way to evaluate the practicalities involved in allowing intercept evidence; what processes are in place for the Government to take expert advice from lawyers, law enforcement agencies and the intelligence services to that end; and whether he has any plans to bring forward a Green Paper.
Extradition
David Davis Excerpts(13 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Speaker
Order. We will hear from Top Cat in a moment, not just yet. I should have explained. Mr David Davis—he with the slightly greyer hair and the longer service in the House.
Mr Davis
I, for one, congratulate the Home Secretary wholeheartedly on her decision on Gary McKinnon today, but I also share some of the concerns of my right hon. and learned Friend the Member for North East Fife (Sir Menzies Campbell). There are a number of cases where there are concerns over justice being done, with respect to both Europe and the USA—in particular, in respect of the USA, there are fears that the intimidatory use of the plea bargaining arrangements force possibly innocent people to make guilty pleas, and similar problems in the justice systems of other European countries. Will the Home Secretary give the House an undertaking that what she proposes to bring about today will give protection to UK citizens equal to that which American citizens get from their constitution?
Mrs May
As I said in response to my right hon. and learned Friend the Member for North East Fife (Sir Menzies Campbell), I understand that a number of Members, including my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), still have concerns about the perception of the imbalance between the probable cause and reasonable suspicion tests. As I say, Sir Scott Baker looked at this and found that there was no significant difference between them—that in practice the application of those two tests was not significantly different as between the US requests and the UK requests. I can assure my right hon. Friend that Sir Scott Baker’s decision was relevant to those from the UK whose extradition to the United States was requested, and vice versa.