Reports into Investigatory Powers

John Hayes Excerpts

Thursday 25th June 2015 Commons Chamber

[John McDonnell (Hayes and Harlington) (Lab)]

I am chair of the cross-party National Union of Journalists parliamentary group, and for the last two years, with Government co-operation, we have gone through the highways and byways of each piece of legislation—ranging from the Police and Criminal Evidence Act 1984 to RIPA to DRIPA, then on to the Counter-Terrorism and Security Act 2015—to see how we can best protect journalists and their sources. I thank the Government for their co-operation throughout. We have had detailed consideration of the codes of practice to each piece of legislation, and with our lawyers meeting on a regular basis, and with the Society of Editors, we have tried to move the debate forward.

On the protection of journalists, I say to the hon. Member for Gloucester (Richard Graham) that an issue of confidence was raised in this House by all parties. As he may recall, that stemmed from the introduction of PACE procedures, whereby there was an understanding in Government that journalists and in particular, their sources, should be protected as an inherent part of protecting our democracy. Under PACE, there was a protection whereby, if there was an application for seeking information, a journalist would be notified. They would have their day in court and be able to represent themselves, and there would be a right of appeal. That process was generally accepted by all, except some authorities.

Many of us were shocked 18 months ago when we received reports that to avoid the use of PACE, a number of authorities—the police, the intelligence services, and even local councils—had used RIPA to avoid the due process of applying, judicial overview and the right of appeal. The scale of the use of RIPA by individual authorities was immense, and I think it shocked us all when that was exposed. Local councils were using it to spy on their own staff or even people who were making applications for local schools, and so on. There was shock on both sides of the House and a feeling that that was inappropriate use of the legislation.

We then went through discussions about DRIPA. Through the NUJ and the Society of Editors, we met the Government and applied our minds to getting some protections within the codes of practice, and eventually, under the Counter-Terrorism and Security Bill. Throughout the continuing theme was the same as in today’s debate—that there was a need to rationalise the legislation, so that not only was it effective and understandable, but that it had protections in place for those with privileged or confidential information.

Anderson has been welcomed by the NUJ and others, because it goes some way towards doing that. The NUJ’s position was straightforward: it wanted an independent judicial process. In addition, it wanted automatic and mandatory prior notification of requests for accessing information, and it wanted mechanisms to challenge an application with the right of appeal. Anderson goes some way towards doing the first, and in recommendations 67 to 69, he makes special consideration with regard to journalists. He clearly states that the designated person

“should be obliged either to refuse the request”—

when it comes to identifying a journalist’s information or confidential source, and then automatically—

“refer the matter to ISIC for a Judicial Commissioner to decide”.

The NUJ welcomes that process, but I speak briefly to make a couple of appeals on the matter. Anderson recommends that there is a code of practice or ISIC guidance that specifies:

“the rare circumstances in which it may be acceptable to seek communications data for such a purpose, and…the circumstances in which such requests should be referred to ISIC.”

I say to the Minister that it would be really helpful, if the Government are going down the route of further guidance, to start the consultation process now. Again, the NUJ would welcome access to officials to commence those discussions in advance of the publication of any such guidance.

[The Minister for Security (Mr John Hayes)]

Given the brevity that I will no doubt be obliged to adopt at the end of this debate, I am more that happy to meet the hon. Gentleman to discuss the specific point that he is making.

[John McDonnell]

I am grateful to the Minister; I thought that would be his response.

May I ask that, this time round, any draft guidance is published in advance of the primary legislation, so that we are fully conversant with the implications of the primary legislation in detail when we discuss it? We were not capable of doing that in the past because of the rush of emergency legislation, but it would be helpful.

One issue that is not addressed effectively by Anderson is prior notification. I accept that there are circumstances in which prior notification becomes difficult, some of which have been mentioned today. However, there needs to be wider discussion of this issue and it must not just be dismissed in the way that it was in the report. There also needs to be further discussion about the right of appeal in respect of any decisions by the judicial commissioners in addition to those that are set out in the Anderson report. I would welcome further consultation on those elements.

I will make one final point because I know that I must be brief and that others wish to speak. Anderson does, to give him his due, stress the importance of the protection of journalists and their sources, and quotes Liberty on the issue. We must remember that those are the journalists that we sometimes do not hold in great affection. They are the journalists who exposed the MPs expenses scandal and who expose corruption. They do so on the basis of information that is brought to them by sources that need to be protected. The word “chilling” was used earlier. We said in the debates about the movement from PACE to RIPA that any undermining of the protection of sources would have a chilling effect and they would not come forward, thereby undermining the democratic accountability of administrations at all levels.

I am grateful that David Anderson quotes Liberty and bases his proposals on its principles, which state that a

“free press and the right to free speech is dependent on respect for private correspondence”.

If we establish those principles in the legislation that is brought forward, it will lay the basis for firm legislation. That will also inform the debate that we eventually have on the Pitchford inquiry into surveillance more generally.

--- Later in debate ---

[Mr John Hayes]

indicated assent.

[Simon Hoare]

My hon. Friend the Member for Eastleigh (Mims Davies) clearly said that balances and judgments will always have to be made. As we see the proposals evolve through this Session and as we have our Divisions and debates, I would urge all hon. Members to keep one thing in mind. Yes, we must always maintain the checks and balances to ensure that things have not gone too far out of kilter, but we should always have at the back of our mind this one salient point. If we have another atrocity such as the one we had a few years ago in central London, or indeed in any other towns and cities, we should not have to look into the eyes of grieving relatives and communities and say, “We could have stopped that; we could have broken the chain of terrorism, but we were unable to do it because we were too concerned about the maintenance of the ‘virgo intacta’ of civil liberties.” I hope that is not an unparliamentary term to use, Madam Deputy Speaker.

We are accountable to our electorate; that is our duty. If the first duty of Government is the protection and defence of the realm, the vital role played by the security services within that must be taken into account, as other Members have made abundantly clear. In a changing landscape where technology changes every day and the terrorist or person who wishes our country ill is moving forward faster than we think they are, we must ensure that we are as fleet of foot and that there is scope within the regulations to ensure that we respond to the threats.

Finally, because we are accountable to our electorate, I am not persuaded by the argument put forward in the Anderson report that the final decision should be taken by a judge. I think that power should rest with the Home Secretary, who is, after all, accountable to this House, accountable to Cabinet colleagues and accountable to senior Committees. Yes, there should be judicial review and judicial oversight, but to put the responsibility for taking away democratic accountability in the hands of judges would, I think, be a step too far.

--- Later in debate ---

[The Minister for Security (Mr John Hayes)]

May I say what an honour it is to conclude such a measured, informed and significant debate? I am grateful to all hon. and right hon. Members who participated. It has been both in tone and content—as typified by the shadow Minister’s speech just a moment ago—dignified, reflective, measured and determined to do the right thing. There is a determination across the House to get this right.

That is not surprising, given that we are dealing with very serious matters relating to the security of the nation and its citizens. That is at the heart of the national interest and essential to the common good. My hon. Friend the Member for North Dorset (Simon Hoare) made that absolutely clear in a powerful speech, made all the more powerful by his tribute in it to me. That is why I chose to mention him first.

Most powerful, however, were the maiden speeches we heard today. As the shadow Minister, the hon. Member for Kingston upon Hull North (Diana Johnson), generously said, we had maiden speeches from a variety of places in the country and in this House. I congratulate all those who made their maiden speeches, but, as Members would expect, particularly my hon. Friends the Members for Banbury (Victoria Prentis) and for Rochester and Strood (Kelly Tolhurst). Even in this non-partisan debate, I cannot help but reveal just a slight prejudice in favour of those on this side of the House.

Keeping people safe, as my hon. Friend the Member for North Dorset also said, is the primary responsibility of Government. It is a responsibility on which all else depends and it transcends partisan politics. That is an axiomatic point; there should not be party divisions about the security of our nation and its people. We must stand together, as this House at its best always does, in the national interest and for the common good. It is also important, as my hon. Friend the Member for Braintree (James Cleverly) argued, that we consider these matters in a measured way. I was pleased that those on the Opposition Front Bench acknowledged that the Government are doing just that. We wanted to have an early opportunity to explore these matters in this debate and we are determined to proceed on a consultative basis, listening to all arguments. These are not simple matters and they must be considered in that way, and they will be—make no mistake about that.

The right hon. Member for Sheffield, Hallam (Mr Clegg), whom I have known and worked with in all kinds of guises over some time, always speaks with great conviction on these subjects. He made important points about the considerations that dictate the extent to which the agencies’ capabilities may be made public. As ever, we will ensure that we make information available where it can be made available, and in that respect we are considering the recommendations in the Anderson report carefully. I understand the right hon. Gentleman’s perspective and we take that seriously.

The right hon. Gentleman and many others raised the issue of third party data. It is essential that we understand that David Anderson did not say that one thing or another should be introduced; he said only that the case should be made for that capability. I think we all agree that to legitimise the exercise, a case should be made to this House and more widely. I do not think there is any difference between us on the need to explore these matters properly and to make the arguments persuasively, precisely as he asked us to do.

My hon. Friend the Member for Gloucester (Richard Graham) made it clear that it is right to consider the issues of domestic appeal. I will not say more than that at this stage, but I note what David Anderson said about that and I note too that my hon. Friend amplified it.

Others made the point repeatedly, and rightly so, that the environment we are working in requires nothing less than that consultative and measured consideration, because it is such a challenging environment. The House should be under no illusions that the UK does not face serious threats from home and abroad. Reasonableness must be tested against reality. It was Hegel who said—it is a pity the Speaker is not in his place, Madam Deputy Speaker, because he likes it when I draw on Hegel, but I know you do too, and I am coming to one of your favourites later—

“What is reasonable is real; that which is real is reasonable.”

Matching our response to the reality of the threat we face is, in that sense, a test of its reasonableness. Recent attacks on allies around the globe show us that there must be no complacency, but that we must always be alert and ready to act. We will shortly mark the 10th anniversary of the 7 July attacks in London that resulted in the deaths of 52 innocent people and injury to 700 others. Those terrible events are seared on the memories of us all, I think—a heart-wrenching reminder of just how real the threat we face is.

As the shadow Home Secretary said, it is not only terrorist threats that our intelligence agencies thwart in exemplary fashion. Daily in each of our constituencies lives are touched, and sometimes ruined, by serious crimes such as murder, rape, child sexual exploitation and trafficking. The hon. and learned Member for Holborn and St Pancras (Keir Starmer) made the highly pertinent point that investigations into all those subjects require scrutiny of all sorts of information, including historical information. We know that in some of the recent and most notable cases, that has been vital to bringing people to justice. I thought that was a powerful argument about not just dealing with now or what might be, but dealing with what has been in the terms that he described.

There are certainly no grounds for complacency. As well as dealing with what has been, we have to be aware that the threat we face is highly dynamic. My hon. Friend the Member for Banbury said that the adequacy of our response will be tested by its capacity to deal with that very dynamism. The ability of our enemies, those who want to do us damage, to move quickly must be matched by our ability to respond with just such alacrity. It is true that, as the shadow Home Secretary and others have said, although the internet has undoubtedly served many virtuous purposes, we cannot ignore the fact that it has also created opportunities for criminals and terrorists, which they have been fast and keen to exploit.

My hon. Friend the Member for Halesowen and Rowley Regis (James Morris) drew our attention to the dark web, and some of the things that happen in that place. In a digital age, our laws must be framed to give our law enforcement and intelligence agencies the tools and capabilities they need to perform their essential work, as my right hon. Friend the Member for Cities of London and Westminster (Mark Field) made clear. As he said, those services will look at only a tiny fraction of the multitude of activities that take place in that area. He drew our attention to the report of the Committee on which he so ably serves, which has looked at these matters in considerable detail.

We are clear that there is a need for new legislation on the subject of investigatory powers. We note and take very seriously David Anderson’s remark, repeated in this Chamber, that there is a need for coherence and clarity in all we do. We have heard many hon. Members repeat his claim, including my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, who was very bold in admitting his ignorance. He suggested that that ignorance applied to us all; I am only prepared to admit to bliss. He said that the nature of what we were dealing with was so complex that it was almost incomprehensible, and that that would have an effect on faith, belief and confidence in the system for all involved. He made a powerful contribution to our debate, and I know that he will continue to do so as we consider these matters over the coming weeks and months.

We hear clearly the message that David Anderson broadcast, which has been repeated today: coherence, clarity and, to some degree, simplification have merit of themselves in assuring people about what we do and why. As the House knows, the sunset clause in the Data Retention and Investigatory Powers Act 2014 provides a clear deadline. Legislation is needed, and David Anderson’s report provides a clear starting point for constructing that legislation. His report is complemented by the report on privacy and security that the Intelligence and Security Committee, which I mentioned, published in March. As the shadow Minister said, we also look forward to receiving the Royal United Services Institute report in the coming weeks. Together, those reports will form a firm basis for considering legislation, but I make no apology for repeating the point that this is a consultative process. Not only do we intend to discuss these matters in the House, as we have done today, but we will publish a draft Bill precisely to facilitate pre-legislative scrutiny of the kind that was called for in this discussion. Today’s debate has been held in that spirit.

I have listened carefully to the many and varied speeches made. Some very specific contributions, including that of the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and the shadow Home Secretary, require careful consideration and will no doubt form the basis of further discussions.

We have heard many tributes paid to our security and intelligence agencies; I want to amplify those remarks. The work they do every day to keep us safe—at great personal risk, as the Home Secretary has often said—is by necessity undertaken in secret, and is consequently unknown and often unheralded. Like her, I applaud what they do. As Security Minister, I am now able to see in person just how impressive those charged with protecting us are, and I welcome the opportunity to place on record the House’s appreciation for their determination, dedication and diligence.

There has been considerable discussion, not unanticipated, of who issues warrants. My right hon. and learned Friend the Member for Beaconsfield raised the issue with his usual style, and made some interesting remarks about the impact that changes might have on operational effectiveness. Others argued that the system could be affected detrimentally by what would be a more bureaucratic and possibly less responsive approach. Those are matters to be explored and discussed; I make no definitive remark on either position today, but those are certainly likely to be the sort of things that we will consider in considerable detail over the coming weeks.

What is absolutely clear is that wherever that consideration leads, the system must have two fundamental attributes at its core—first, that it is practical and workable, for as hon. Members have repeatedly argued, the price of failure is almost unimaginably horrible. Secondly, it should reflect where functions should reside in our parliamentary democracy. There has been something of a fashion among politicians in recent years, perhaps because of a certain degree of insecurity—a lack of confidence, which of course I do not share—which has led to the giving of powers to others which might more properly rest in this House. That was the case made by my hon. Friend the Member for South West Wiltshire (Dr Murrison) when he talked about the accountability to the people through the power—“sovereignty” was the word used—of this House. I do not want to exaggerate the case, but it must be taken fully into account.

The Executive, answerable to this House, and through this House answerable to the people, play an important role in safeguarding our democracy. The argument that others should be involved must not be allowed to erode public confidence. There has been some confusion about public confidence. I do not mean to be unkind to the hon. and learned Member for Edinburgh South West (Joanna Cherry)—I will become more unkind to her when she has been here longer because I will feel more right to be so, but at present it would be excessively harsh—but I do not agree with her about public confidence in the system. The facts do not support her argument. She must know that all surveys of public opinion suggest a very high level of confidence in our intelligence and security services. They suggest that the public support the work they do in keeping us safe, and I do not hear a clarion call for change or the radical spirit that she conveyed reflected in the views and sentiment expressed to me, but perhaps we move in different places in different circles at different times.

We have heard a lot said today about bulk collection of data. Let us be clear. Both the ISC and David Anderson have examined what happens at present and suggested that those capabilities are required, are properly used and are not subject to abuse. Just as clear is the need to address the so-called snoopers charter. I am sorry that it was raised in those terms. There was never a snoopers charter. David Anderson’s report puts that canard back in its nest once and for all.

Despite what some have suggested, David Anderson does not say there is no case for the capabilities that were to have been included in the former Communications Data Bill, though I accept, and the Home Secretary made it clear, that we are taking a step back, thinking afresh and taking into account all that has been said and done. Clarity and coherence are frequently the hallmarks of understanding and almost always the prerequisites of confidence. I acknowledge and accept that and will look at legislation very much in that spirit.

What a valuable debate we have had today. As I thought about our intelligence services, the guardians of our freedom, I thought of C. S. Lewis, who I knew you would want me to say a word about, Madam Deputy Speaker. He said:

“Courage is not simply one of the virtues, but the form of every virtue at the testing point.”

Our intelligence services are tested regularly. This is vital legislation because it affects the safety of the British people. It must be right and fit for purpose for many years to come—no small challenge, given that we are dealing with fast-moving and ever-changing technology, as many hon. Members said. Parliament will, of course, be fundamental to that process, both in the pre-legislative scrutiny to which the draft Bill will be subjected, and in the rigorous scrutiny which I fully expect will be applied to the Bill. That is how it should be.

We must act with the certainty epitomised by my hon. Friend the Member for Rochester and Strood, tempered by the care recommended by my right hon. and learned Friend the Member for Beaconsfield. We must proceed with the confidence illustrated by my hon. Friend the Member for Banbury, coloured by the honest assessment of the scale of the challenge we face, made clear by my right hon. Friend the Member for Cities of London and Westminster, but most of all we must act with the determination personified by my right hon. Friend the Home Secretary, who knows that we must do what is necessary, but fundamentally we must do what is right.

Question put and agreed to.

Resolved,

That this House has considered reports into investigatory powers.