Surveillance of Telecommunications (Judicial Oversight)

David Heath Excerpts

Wednesday 11th December 2013 Commons Chamber

[Mr David Heath (Somerton and Frome) (LD)]

I beg to move,

That leave be given to bring in a Bill to amend the Regulation of Investigative Powers Act 2000 and the Intelligence Services Act 1994 to ensure judicial oversight of the use of material derived from British citizens by means of surveillance of telecommunications; to make provisions concerning the operation of the Investigatory Powers Tribunal; and for connected purposes.

Having unfortunately been on Capitol hill in Washington on 9/11 and in Aldgate on 7/7, I need no lessons on the threat to this country from terrorism and from those who wish to do us harm. I want to start my comments by paying tribute to the security services for all their hard work and the dangers they encounter on our behalf. I would include in that GCHQ, which provides invaluable information, often on the basis of fragmentary evidence, in supporting our safety.

Any surveillance and any clandestine operation in an open, democratic society raises questions that cannot be answered by the agencies themselves or by the Executive but only by the legislature—by this Parliament. They are questions such as these: where are the boundaries between privacy and legitimate information gathering? What controls are in place to prevent either abuse or the suspicion of abuse? What are the limits to what inevitably has to be done in secret? What information is legitimately withheld? How does our legislation and, for that matter, our capability measure up to the ever-changing potential of technology? How effective is our parliamentary scrutiny? How comprehensive is the legal framework within which the security services work?

It is only by asking those questions and, more importantly, coming up with answers that Parliament can ensure not only the safety but the protection of the interests of our citizens. Only by having adequate safeguards in place can we retain people’s confidence that what is being done is being done in an appropriate and proportionate way, and that they can safely use technologies where they believe they have a right to privacy without that privacy being invaded without good cause by the state.

Recent revelations have, at the very least, called into question some of those suppositions, not—I make this clear having received assurances from Ministers—such that the security services are acting outside the law, but that the law is inadequate to meet the present circumstances. That is why my Bill proposes amendments to the legislation passed in 1994 and 2000 to fill in those gaps. Let us remember how far the technology has moved in those intervening years and the extent to which the use of social media, for instance, and various technologies is so very different from the circumstances in which that legislation was framed.

We need to deal with not only the direct interception of communications, but the collection of communication data. Those metadata—the derivative data—that can be analysed are just as important, but I believe that the law is silent on that area. We also need to deal not only with what is collected directly by the United Kingdom agencies, but with the actions of overseas allies. We need to ensure that such material is subject to judicial oversight and on the terms of warranted action rather than those of subsequent review, which is a key difference.

The Bill would enable the man or woman on the street to know that their communications were not the subject of inappropriate and disproportionate intrusion. Just as importantly, it would provide the legal framework by which the security agencies would ensure that they would not be subject to legal challenge in their essential work. No such framework exists at present.

That review and updating of legislation is very necessary—those working within the security world agree about that as much as commentators on the outside, including the senior judiciary. If my Bill does not reach the statute book, I hope nevertheless that post-legislative scrutiny of the Regulation of Investigatory Powers Act 2000 will now be undertaken as a matter of urgency, because we need to answer some of these essential questions.

Parliamentary scrutiny is critical. I salute the work done by the Intelligence and Security Committee, particularly the announcement of its forthcoming inquiry into these matters. How much stronger would it be, however, were it to be more properly constituted as a Select Committee chosen by this House and given the resource to do its job properly? That is something I advocated in government and I renew my plea now. I do not believe it is impossible to achieve the security clearances needed to ensure that information is not inappropriately shared while also following the selection procedures of this House. Other legislatures do it. The Americans do it. Why on earth are we incapable of following their example? I see no obvious reason.

Finally, the Investigatory Powers Tribunal should be reformed to make its operation more transparent and the basis for its decisions more open. There are very good reasons—I understand that—for not revealing every detail of a strand of investigation or a technique that is at the disposal of the authorities, but a total lack of transparency and accountability for decision making is not the answer. I believe we can do better.

As I briefly alluded to earlier, other countries are taking these matters very seriously indeed. I am struck by the work being undertaken by the Senate Committee led by Senator Feinstein in the United States. Its legislature is leading a very public debate on where the limits—the boundaries—ought to be set. We are not having that same debate in this country and I think that is because we in Parliament are not taking the lead that we should. I believe that we have a duty to do so.

If we do not do that, I believe we will be failing our citizens and, incidentally, our security services. If we simply close our eyes to what are real issues with difficult answers, we will be letting down not only the public, but the people we ask to do these terribly difficult jobs. They cannot police themselves. They cannot do everything through better training or through being given better information because, at the end of the day, their focus is on doing the best possible job, not on setting the boundaries for their work, which is the proper job of Parliament.

I believe that we owe it to all those with intelligence interests not just to visit, but to revisit the legislative framework regularly, because unless we do so it will never keep up to date with technological advances or keep pace with the techniques of those who would wish to harm us, let alone the techniques of those with whom we entrust our security.

The Bill will at least allow us to debate the matter properly. I hope that it will also enable us to amend the law appropriately and to do the job that our electorate expect us to do, which is not just to give the security services the ability to ensure our protection, but to provide people with the security of knowing that there are boundaries provided by a framework of regulation and that those who necessarily work in a clandestine way will keep to those rules because that is the law.

Question put and agreed to.

Ordered,

That Mr David Heath, Mr Dominic Raab, Mr Tom Watson, Dr Julian Huppert, Mr Elfyn Llwyd, Rory Stewart, Simon Hughes, Mr David Winnick and Caroline Lucas present the Bill.

Mr David Heath accordingly presented the Bill.

Bill read the First time; to be read a Second time on Friday 28 February 2014, and to be printed (Bill 143).

Delegated Legislation

Motion made, and Question put forthwith (Standing Order No. 118(6)),

Value Added Tax

That the Value Added Tax (Flat-rate Valuation of Supplies of Fuel for Private Use) Order 2013 (S.I., 2013, No. 2911), dated 18 November 2013, a copy of which was laid before this House on 18 November, be approved.—(Anne Milton.)

Question agreed to.

Financial Services (Banking Reform) Bill (Money)

Queen’s recommendation signified.

Resolved,

That, for the purposes of any Act resulting from the Financial Services (Banking Reform) Bill, it is expedient to authorise:

(1) the payment out of money provided by Parliament of:

(a) any expenditure incurred under or by virtue of the Act by a Minister of the Crown or government department;

(b) any increase attributable to the Act in the sums payable under any other Act out of money so provided;

(2) the payment out of the Consolidated Fund of any increase attributable to the Act in the sums which in urgent cases are payable out of that Fund under the Banking Act 2009;

(3) the payment out of the National Loans Fund of any increase attributable to the Act in the sums payable out of that Fund under any other Act.—(Sajid Javid.)

Financial Services (Banking Reform) Bill (Ways and Means) (No. 2)

Resolved,

That, for the purposes of any Act resulting from the Financial Services (Banking Reform) Bill, it is expedient to authorise:

(1) the charging of fees on persons authorised under Part 2 of the Compensation Act 2006 for the purpose of meeting expenditure of the Office for Legal Complaints; and

(2) the payment of sums into the Consolidated Fund.—(Sajid Javid.)

Financial Services (Banking Reform) Bill (Programme) (No. 3)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Financial Services (Banking Reform) Bill for the purpose of supplementing the Order of 11 March 2013 in the last Session of Parliament (Financial Services (Banking Reform) Bill (Programme)) and the Order of 8 July 2013 (Financial Services (Banking Reform) Bill (Programme) (No. 2)):

Consideration of Lords Amendments

(1) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion six hours after their commencement at today’s sitting.

(2) The proceedings shall be taken in the order shown in the first column of the following Table.

(3) The proceedings shall (so far as not previously concluded) be brought to a conclusion at the times specified in the second column of the Table.

Table