Investigatory Powers Bill

Keir Starmer Excerpts

Tuesday 15th March 2016 Commons Chamber

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

I pay tribute to all contributions made during this debate.

Anyone who has been involved in real time in a criminal investigation knows how vital it is for the police and our security and intelligence services to have access to communications and personal data. If a child goes missing, or a planned terrorist plot is uncovered, and a suspect appears on the radar for the first time, then knowing who he is, who he has been in contact with, and when, are vital clues.

The police, and the security and intelligence services, must be able to look back as well as forward. I know that because when I was Director of Public Prosecutions, I worked with the relevant agencies in real time on real cases that involved some of the most serious and grotesque crimes, and I shared the anxiety of tracking down individuals before they committed unspeakable crimes. For me, that has always made a compelling case for retaining some communications and personal data. Whether that is done by a retention notice from the Secretary of State or through the use of bulk powers, we cannot target suspects until we know that they exist and what they have been up to.

Whether we like it or not, we need the power and capability to park data and allow access to it at some later stage on strict terms. However, that is not, and should never be, the end of the story. The fact that a few individuals with experience trust such an exercise is not enough for the general public. Retaining communications and personal data is highly intrusive, and accessing that data at a later stage even more so—the clearest examples of that are bulk intercept powers and equipment interference capabilities.

There have been a number of exchanges this afternoon about the words “mass surveillance”, and I do not intend to embark on that. At best, such powers could be described as “suspicionless mass retention”, but that does not mean that they cannot be justified, or that they cannot be used. It does mean, however, that the concerns raised across the House deserve careful consideration.

The terms on which we park data, what we allow to be parked and in what circumstances, and the terms in which those data can later be accessed, matter in a modern democracy, and that puts the right to privacy in central place. Such powers must be set out in clear terms in law, and they must be necessary and proportionate. That first requirement that powers and capabilities be set out in law is not a legalistic tick-box exercise. In the wake of the Snowden revelations, it is clear that some investigatory powers in the UK have been and are being used more widely than was previously known, and without the safeguards in the Bill. If that is to be avoided in future, tightly drawn definitions of all powers and capabilities are needed in the Bill.

In that respect, I fear that the Government are moving in the wrong direction. The pre-scrutiny committees pointed to powers that they said were too broad and lacked clarity. Some of those powers have now been put into codes of practice, and there is nothing wrong with such codes of practice being available at this stage—we called for that, it is good to have them, and I applaud the Home Secretary for putting them before the House. However, there is a big difference between defining a power in a code of practice and defining it in statute. Even where powers are defined in the Bill, there is ambiguity.

A lot of the discussion this afternoon has been about internet connection records, and I urge Members to look again at clause 54, which is extremely vague and broad. As my hon. Friend the Member for Walthamstow (Stella Creasy) powerfully said, the distinction between content and contact is not as easy to make as it first appears. The necessity test in relation to some of the powers has also not yet fully been made. Of particular concern are the bulk powers, which allow the security and intelligence agencies to collect large volumes of data, including communications data and contact.

Operational cases have been published. So far, they have failed to convince. They need to be independently assessed. The Home Secretary indicated that the information has been given to the Intelligence and Security Committee, and we await the outcome of that. I do not suggest they cannot be justified, but it is important for the public at large that they are justified.

On proportionality, the principle is that the most intrusive powers should be reserved for the most serious cases. There must be clear safeguards to prevent the temptations of using them for lesser offences. There can be no doubt that when a young child goes missing or the intelligence suggests a suspected terrorist attack, access to data held by the police—and, where necessary, the security and intelligence services—should be rapid and reliable. However, that does not justify routine resort to intrusive measures in other, less serious cases.

A lot of concern has been expressed about internet connection records. A rule that should be applied in investigatory powers cases is that the wider the set of data collected, the more careful the threshold should be and the higher the point of access. Even if the case can be made for internet connection records, that is a very, very wide dataset. This requires the threshold for access to be reconsidered and I invite the Government to consider the really serious matter of the threshold for access for internet connection records.

A fit-for-purpose 21st-century surveillance law is a prize worth fighting for and Labour will work with the Government to achieve it. For that to happen, however, the Government need to allow sufficient time for scrutiny, and, equally importantly, to shift position on a number of key issues. It is as simple as that.