Reports into Investigatory Powers

Keir Starmer Excerpts

Thursday 25th June 2015 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

I congratulate the hon. Member for Rochester and Strood (Kelly Tolhurst) on an excellent and forthright maiden speech, and I pay tribute to all Members who have made maiden speeches this afternoon, which were among the best that I have heard.

I welcome the debate this afternoon and David Anderson’s report. These are important issues and they have become pressing. I was the Director of Public Prosecutions for five years, had a great deal of exposure to the exercise of investigatory powers and recognise the background that David Anderson sets out in his report. There has been a long-term shift from telephone communications via UK service providers towards internet-based communications through overseas service providers. Encryption capability has changed and the law, as I discovered, is not as clear or as comprehensive as it should be.

The Snowden revelations have given us a line of sight on this important issue. There will be tension in this debate that is picked up in this House. It is laid out in David Anderson’s report. As the volume of electronic communications grows, the authorities, on the one hand, understandably fear the emergence of new channels of communication which cannot be monitored, and thus they seek new powers. Privacy advocates, on the other hand, raise the spectre of a surveillance state. That tension is not unfortunate. It is welcome and necessary in a democratic society and should play its part in our debates. Striking the balance in the new draft Bill will be critical.

As the Home Secretary said when she last spoke on this issue on 11 June, it is impossible to have that debate without first considering the threat that we face as a country. This is not the place for me to detail that threat, but when I was DPP I was asked about the importance of communications data in prosecuting terrorist offences and I provided that information to the Government in a letter. David Anderson’s report provides an update on the information that I provided and quotes the Crown Prosecution Service evidence as of 1 October 2014. That gives a snapshot of the recent prosecutions.

The CPS evidence shows that, in 26 recent terrorist cases, of which 17 have thus far concluded with a conviction, 23 could not have been pursued without communications data, and in 11 of the cases the conviction was dependent on those data. One of the cases that I oversaw as DPP has already been referred to, Operation Overt. That was the operation that involved thwarting a co-ordinated suicide plot to bring down seven transatlantic flights at the same time, using liquid explosives. The plot was thwarted by the careful and painstaking work of the police and security services, and the case was then prosecuted by my staff in the counter-terrorism team. The ability to access communications data was vital to the successful outcome of that important case.

However, it would be wrong to conduct this debate on the basis that it is only in terrorist cases that communications data are relevant, because they are used widely in cases of serious organised crime, online fraud and child sexual exploitation. That is why I have always argued that investigators and prosecutors need to maintain the capacity they have, and that any reduction in their capability might jeopardise future prosecutions.

Proportionate surveillance and interception are vital to saving lives and to the successful investigation and prosecution of serious crime. That is why I and others have listened carefully to the case for change made by the police and the security agencies, and why I think that there is now near consensus that reform and extension of investigatory powers are needed. But—and it is a big but—as the case for greater powers for our police and security agencies becomes more powerful, so too does the case for strong checks and balances. The guiding principles that must take us through that are clear.

First, the powers to intrude on privacy must be provided by accessible and foreseeable laws. In that regard, we must be clear that sensitive powers need to be fully declared before the law is enacted. Secondly, such powers should be used only when their use is necessary and proportionate. The burden is on the Government to establish necessity and proportionality when they bring forth the draft Bill, and it is on the police and other agencies each time they exercise their powers. Thirdly, authorisation and oversight must be clear and comprehensive. Fourthly, there must be an effective remedy for individuals whose rights might have been infringed.

Against that background, I welcome David Anderson’s recommendation that the existing authorisation and oversight regime should be replaced by a system of judicial authorisation, as has been touched on in this afternoon’s debate. It is a step change, as it will change the practice that has been in place for many years, but I believe that it is the right step. David Anderson sets out the arguments for and against the change. It is not a question of whether the Secretary of State or the judges can do the function, because they can, and it is not to call into question the good faith in which the powers have been exercised until now; it is a step change that is needed for the reasons set out in David Anderson’s report.

On the vital question of accountability, David Anderson sets out why, in truth, the argument about accountability does not really stack up, for some of the reasons that have been alluded to this afternoon, because ultimately the limitations on looking at the material are such that, whoever exercises the power, the real accountability is with the Investigatory Powers Tribunal. I think that is a step in the right direction. I recognise that it is a big step and that it needs to be carefully debated, but it adds considerably to the oversight and is in keeping with the extension of powers that is sought.

I also welcome David Anderson’s recommendation that there should be no question of progressing proposals for the compulsory retention of third party data before a compelling operational case has been made. It is now for that case to be made by those who want to make it. Those recommendations are consistent with the guiding principles that I have just set out.

In my view, those guiding principles also need to be applied to the difficult and possibly more controversial areas where David Anderson left room for further debate, recognising that his was not necessarily the last voice. They relate to the distinction between content and communications data.

In the first instance, David Anderson recognises that there needs to be a review of the borderline between content and communications data. That review needs to be open and inclusive, and it needs to be carried out urgently, because this matter crops up in an operational context. When the review is complete, a final decision can be taken on whether the current distinction is maintained. However, I am acutely aware of the ramifications for authorisation and admissibility of evidence if there is any alteration of that distinction.

Secondly, there is bulk data collection; I do understand how this works. David Anderson acknowledges that the question of whether the current section 8(4) regime is proportionate for the purposes of article 8 of the European convention is yet to be authoritatively determined by the European Court of Human Rights, but I am not sure that this House can duck the issue on that basis. The guiding principles have to be applied. Bulk data collection is a huge power, and if it is to be included in the draft Bill, then a compelling case has to be made for its necessity and proportionality. That is the ongoing challenge on bulk data collection.

As for the treatment of journalistic material and legal professional privilege, both of those rightly attract special protection. David Anderson has said that there must be no no-go areas, and I am inclined to the view that he is right, having myself seen material that falls into both categories. If he is right, and if that is the position under the draft Bill, there must be very close scrutiny of the provisions to ensure that the protection that is rightly in place for journalists and for clients of lawyers is properly protected according to the guiding principles.