Investigatory Powers Bill (Second sitting)
Keir Starmer Excerpts(8 years, 8 months ago)
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Keir Starmer (Holborn and St Pancras) (Lab)
Q We have a definition in the Bill, as I am sure you know, of an internet connection record. What is recorded by BT or any other service provider if I book a train ticket on my mobile phone? What comes up on your record?
Mark Hughes: I would like to answer that question looking more at the Bill itself, and then come back to your question. There are clearly quite specific provisions in the Bill on what we are there to collect.
Keir Starmer
Q We have a definition—I would have copied it to you, but you probably have it there—in clause 54(6). You probably know it backwards.
Mark Hughes: Some examples of what we are talking about—I am sorry to be technical, but it is important that I refer to some technical matters—are the customer line reference number, which we perhaps know in common parlance as the account number, and the source and destination host IP addresses. The port to and from it provides content that we have to collect. There are also mass data sets. The Bill is quite clear about what we are there to collect.
On your specific question about a service where you are booking a train journey, we retain various components of the types of data that I just spoke about. It would be things such as source and destination IP addresses and the handset you used, which you mentioned specifically. The IMEI, for example, is another piece of data that associates you to that handset.
Keir Starmer
Q If I went to the Trainline website, for example, although it would not come up as Trainline, could you work out that I had been using that website to book my ticket?
Mark Hughes: No, not at the moment. That is not how it currently works. As I understand it, there are four purposes of internet connection records in the Bill, which are to link an IP address to a person or apparatus; to identify the comms service a person is using; to identify where a person is accessing illegal material; and finally, to identify the internet services a person is using, which is pertinent to your question.
What the Bill proposes we are to collect—some of which, by the way, is drawn from data sets that we collect for normal business purposes—may be used to constitute an internet connection record, which would then satisfy those purposes. It is not something we currently retain. The Bill is clear about the ingredients of an internet connection record and its purpose. At the moment, we are still working out with the Home Office exactly how we would compile those pieces of information to create internet connection records and find out which website someone was visiting.
Keir Starmer
Q I am sure all that is right, but I am still not sure that I have an answer. If I book a ticket now on the Trainline website, would it come up on your record that I had done it?
Mark Hughes: It is not something that we currently collect and retain.
Keir Starmer
Q Not currently, but when the Bill is law.
Mark Hughes: Yes, the Bill quite clearly states the purpose about identifying the internet service that the person is using—
Keir Starmer
Q So it would come up?
Mark Hughes: One of the purposes is that we would then be under notice to retain and create that record, which we do not currently do at the moment.
Keir Starmer
Q So if the Bill becomes law and I then book a ticket on the Trainline website, you would record it?
Mark Hughes: Under the Bill, once we had been through the consultation process and notice was given, that would be one of the purposes.
Keir Starmer
Q Sorry—I probably should have said that I am not that interested in the process at the moment. I understand the process and of course all the proper processes would have to be followed. I am just interested in what you would get before the process starts.
May I try a different question? If I go through the tube using electronic means of payment, would that—if the Bill becomes law and assuming that all the processes are followed—show up on my record?
Mark Hughes: That would not be information that we had access to. It is not our information; you would have to ask TfL that.
Keir Starmer
Q What about a feature that I have on my phone called Onefootball? Unbeknown to everybody else, my phone asks for the football scores all the time. What would show up on my record if the Bill became law and assuming that all the processes were followed and all the rest of it?
Mark Hughes: Again, it depends. There is some technical detail underneath here in respect of how that particular service provided by that service provider, Onefootball, polls out and how it would use the services that underlie that—that is, the services that we provide. That would obviously then be subject to the process that would then end up with an internet connection record, if that were appropriate in that case. Or it might be that you would have to go to that service provider to gain information.
Keir Starmer
Q But if it were you, would it show that I had been asking for football results all afternoon?
Mark Hughes: If there was an internet connection record under the definition of the Bill, one of the purposes of which would be to identify which internet services you had been using, yes, we would then retain that and disclose it under the appropriate instrument.
Keir Starmer
Q And if I went to the website of The Guardian and clicked on “Brussels attack” and then clicked on “Another bomb”, what would be on your records—assuming that the Bill becomes law, that all the processes are complied with and that there is a proper purpose? I am making all those assumptions. I just want to know what would be on the record.
Mark Hughes: We have obviously been spending a lot of time in consultation with the Home Office. There are varying degrees of capability that the Home Office wants. There is a technical element to how far one goes in terms of the amount of data—there is a trade-off between the amount of data that you collect, retain and then disclose. As the Bill stands, that would also constitute an internet service that someone was using so that would be something on the Bill that we would retain.
Joanna Cherry
Q At the Joint Committee, Mr Hughes, you said that BT had never collected internet connection records before, that you would have to deploy new equipment to comply with the legislation and that that would come at a cost. That is correct, is it not?
Mark Hughes: That is correct, yes.
Gavin Newlands
Q So at the moment the Bill is not clear enough on that aspect?
Mark Hughes: It could be clearer, and we are thinking about proposing an amendment specifically to over-the-top providers, making it clear that they are responsible for that.
Keir Starmer
Q Can I come back to the question of what constitutes an internet connection record? It is the record that you may be responsible for keeping and passing over, so it is important that you have clarity. I take it from your previous answers that you have said some of it will be data that you are already collecting for your own purposes, and some of it will be other data that you are not currently retaining but will retain as a result of the Act. What are the data you are currently retaining? What is the bit that you keep already?
Mark Hughes: I gave an account number as an example. We obviously know our customers’ account numbers, so that is something that we currently have, and we have other types of information, as I went through, which are potentially subject to other pieces of legislation on retaining data. The point about the internet connection record is that it is rather like a series of ingredients, which you have to put together to create the record.
Keir Starmer
Q I have got that. The account number is fine. That does not tell you very much; it is just the account number. When someone does something using the account, what else do you keep at the moment?
Mark Hughes: There are other records associated with other types of services that we have.
Keir Starmer
Q I am sorry; I am struggling with this. Can you give me an example?
Mark Hughes: A source-destination IP port, for example. That is something that has to be available to allow traffic to route around the internet. That is the type of data that we have.
Keir Starmer
The IP port?
Mark Hughes: The extent to which we collect and retain that at the moment is clearly going to depend on our being clearer about what an internet connection record is through the work of the consultation. That will drive how long we have to hold the source-destination IP.
Keir Starmer
Q What data that you do not currently retain or keep will you have to add as an ingredient?
Mark Hughes: As far as I am aware, nothing. At the moment, we have—
Keir Starmer
Nothing?
Mark Hughes: Well, we have information at the moment that we might not retain for a period of time, but which would be commensurate with what the internet connection record is going to be. It is less about the type of data and more about the length of time that we have to retain it. That is the thing that we need to work out through the consultation process. Does that make sense?
Keir Starmer
Q Just to clarify, I heard you say earlier that some of the data you keep and some you would have to constitute. Now, you are saying that it is all data you have got; it is just about how long you keep it for.
Mark Hughes: No. Sorry if I have not been clear on that. The ingredients are there in some shape or form. Some stuff we mainly retain for a very brief period. There are elements of the data that we would have to look at very differently if the Bill became law, in terms of the length of time, how we retain them and how we use them to produce the internet connection record. That would be different.
Keir Starmer
Q If I were your customer and this Bill were law and I accessed The Guardian through you, would you think that one of the ingredients is the page within the home page that I went to? Is that an ingredient that you anticipate that you will have to keep?
Mark Hughes: Sorry, I did not hear the question.
Keir Starmer
Q If I go on the Guardian website, I can start clicking between different parts of the website for different bits of information. You can go on a hyperlink to different pages. Do you anticipate keeping any of that data in the future if I were your customer?
Mark Hughes: As drafted, the Bill talks about identifying the internet service that a person is using. The extent to which that capability will be required on the face of it is subject, as I mentioned earlier, to some of the technical considerations. For example, for what you are describing, if every single thing you were to click on on that particular website needed to be retained, that would require a lot of information, which we would have to generate from our network. Technically speaking, it would require a lot of sampling of traffic to achieve that.
Keir Starmer
Q That is a technical issue, but legally do you think it is within the definition you are working to?
Mark Hughes: Absolutely. I think it is within the definition as it is written in the draft Bill at the moment.
Lucy Frazer
Q Following on from Keir’s questions, there is a concern about the hackability of the volume of data that we have already got. Have we just heard that you already collect this data, albeit not necessarily in the same form or for the same length of time? Is it all still there for someone who wants to access it immediately?
Mark Hughes: No. Not all of the data is collected. We retain lots of data for business purposes, which we therefore retain and secure proportionately and appropriately for that type of information. As I said, there are things in the Bill that are about us having to generate additional records, based on some of the existing information that we have and other types of information that may be necessary in the future.
The Chair
Colleagues, before we see our next panel, may I say that we need to exercise some extraordinary self-discipline with two of these panels? We have three witnesses coming forward on this occasion, before we go back to a single witness. We then have four witnesses for half an hour. Can I ask Front Benchers particularly for discipline and sharpness in questioning, so they are razor sharp?
Thank you, witnesses: do sit down. Because time is pressing, will you tell us briefly, in no more than 10 words, who you are and whom you represent?
Richard Berry: I am Richard Berry, the assistant chief constable from Gloucestershire and the national policing lead for communications data.
Chris Farrimond: I am Chris Farrimond, from the National Crime Agency. I am the deputy director for intelligence collection.
Simon Grunwell: I am Simon Grunwell from Her Majesty’s Revenue and Customs’ fraud investigation service.
Keir Starmer
Q We are trying to get to the bottom of what an internet connection record means in the Bill. We have the words on the page in front of us. From a practical point of view, should this Bill become law, what do you think is going to be made available to you when you need to get an internet connection record?
Chris Farrimond: We put law enforcement requirements into the Home Office, which we gave quite some detail around—the who, where, when and how of internet connection—and the internet connection record has been defined as a result of that. We believe that what we will get is down to the domain name, so it will give us, for example, The Guardian newspaper website, the easyJet website, or thetrainline.com. It will not give us beyond that. If we wanted to go beyond that, we would then have to go to that company with the appropriate authorisation in order to obtain any further details. What we need is to get to the front door. That is what we have been asking for.
Keir Starmer
Q Can I just make sure I have understood that? For booking a train ticket or something, I can understand that you need to go to the next level if you want to find out the particulars. If it is The Guardian website, what comes up first is a website. You can then click on it if you want to go to national news or international news, and within international news, you could go to Brussels, for example, as many people might have done in the last day or so, so you have gone through a couple of hyperlinks to a different page. Will the fact that you have done that come within what you consider to be an internet connection record? I can see for booking a rail ticket that you would have to go in to get the detail of what ticket, where to and all the rest of it, but when someone clicks through to linked sites on let us say, The Guardian, would you expect that to come within the definition of internet connection record?
Chris Farrimond: Our understanding, and what we have been asking for, is just to get us to the front door—the front door that is marked The Guardian, at which point, if we needed to go to The Guardian newspaper to ask for any further details, we would do that.
Keir Starmer
Q On internet connection records, as I have understood it, the purpose of getting the internet connection record in practically all cases is to bridge pretty swiftly into content using other lawful means.
Chris Farrimond: No, I would not agree with that.
Keir Starmer
Q What would you use them for?
Richard Berry: From our perspective, the use of the internet connection record would be very similar to that for which we use communications data anyway. That is potentially to identify further lines of inquiry—for example, that communications service that is accessed. It could be for evidence of illegal material, or the use of illicit material, whether that be child abuse imagery or counter-terrorism-related material, but also to provide a seed for further inquiry, such as thetrainline.com for us to establish, for example, where a suspect has travelled to and where they are intending to travel to. It is about an evidential line of inquiry. It could be evidence in itself, but also a seed for further investigation.
Keir Starmer
Q But in most cases it would be the seed for further investigation. Would it be rare for it to be an end in itself?
Richard Berry: Indeed, because of its high granularity.
Keir Starmer
Q No other country is going down this route to solve the problem of access, which is a growing problem. What are other countries doing if they are not doing internet connection records?
Chris Farrimond: Sorry, I am not convinced that you are correct in that last statement that no other country is going down the same route. I believe Australia has gone down a similar route. Perhaps we need further clarification on that, but my understanding is that Australia has gone down exactly the same route.
Keir Starmer
Q Yes, but I think they have backed up a bit. Which other countries, to your knowledge, have a power to access internet connection records in the way proposed in the Bill or a similar way?
Richard Berry: None at this stage. I think there is a common view within the law enforcement community globally that all eyes are very much on the UK to pave the way in this respect. We are aware of the danger of the Danish experience and the difficulty the Danes had with the type of data they collected to achieve the investigative aims, but while the Australians are making steps in that direction, as Chris has highlighted, at this stage it is very much the UK leading the way.
The Chair
Thank you.
Joanna Cherry, if I give you six minutes—I gave Keir six minutes—you will know what you are working with.
Gavin Newlands
I might not have used easyJet for several months, but the app still connects my phone to easyJet’s service provider. Likewise, I have a British Airways app. None of that limits any effectiveness for you?
Chris Farrimond: What I would expect to get is something showing you connected to easyJet for two minutes rather than for a nanosecond, or for an upgrade coming through. If we saw two minutes, we would say, “He did something with easyJet at that point.”
Richard Berry: Things like the tracking cookies you have on normal websites are not relevant information for our purposes. To offer a point of reassurance, we have a decade of experience of looking at what relevant data should be retained. ICRs are no different to that principle. Prior to any retention notice being served on a particular provider, law enforcement, the Home Office and the provider will be looking at the operational benefit, the cost and the technical feasibility of what data they hold and what data we would use. It almost takes each provider on a case-by-case basis to ensure we are gathering only relevant information. We could see those feeds back—the little connections you are talking about—being ruled out of the data we need to retain.
Keir Starmer
Q May I go back to the definition of internet connection record? To take it in stages, you are obviously concerned about your ability to deal with serious crime and the visibility of what you can do; I completely understand that. You make an ask of the Home Office, which as you said, is basically, “Who? When? Where? How?” That is where you think you need to go next, to maintain the ability you have now, because of the different ways people are communicating.
From that, you said, “Well, therefore The Guardian is enough for us, not that someone went to a page on Libya or clicked on something about Libya bombings, because that is not within our ask.” My difficulty is not to challenge why you want that, what you use it for or its utility. I just cannot see how the definition in the Bill is limited to your ask; in other words, it appears to go as far as you want to go.
Tell me if this is an unfair question, because it is about the words on the page, but which bit of the definition you understand to be the word or words that limit it to what you say you are asking for, rather than letting it go any further? At the moment, I cannot see that bit of the jigsaw. In other words, which is the trigger word in the definition of internet connection record that says The Guardian website but not “within The Guardian, the words ‘Libya’ or ‘bomb’” or whatever it may be that means we cannot go beyond what you have asked for?
Chris Farrimond: It is a bit difficult for us, because as law enforcement officials, we have no hand in writing the Bill.
Keir Starmer
Fair point.
Chris Farrimond: We simply have presented our case to the Home Office, and in quite some detail we have explained what we think we need to be able to protect the public. I am afraid I cannot speak to the actual words on the page.
Keir Starmer
Q Can I follow that question with this last one? If the definition were to be reworded in a way that reflected what you had asked for but made absolutely clear that it did not go beyond that, would that not trouble you at all? In other words, if there were a word, a phrase, a group of words or a definition that made it clear in technical, legal terms that we are talking about The Guardian but not certain clicks within The Guardian website.
Chris Farrimond: As long as it meets the requirement we have put forward, absolutely.
The Chair
Joanna Cherry, you have five seconds, and anyone who wants to answer has 10 seconds.
The Chair
Fantastic—that is an even shorter introduction than the one I have in front of me that details your distinctions.
Keir Starmer
Q From your perspective—the anti-fraud perspective—which of the powers in the Bill are most important to you and why?
Mark Astley: The powers to access communications are very important to our members. Trading standards are our main users. They are not high users but it is important for them to be able to investigate those crimes so they can support their community and the businesses that they are working for and on behalf of.
Keir Starmer
Q At the moment, you do not have access to internet connection records.
Mark Astley: Correct.
Keir Starmer
Q How does that inhibit you, if at all?
Mark Astley: At present, the impact is uncertain.
Keir Starmer
Q The impact of not having it.
Mark Astley: Of not having it—yes. There are areas, as colleagues have previously mentioned where, in the digitisation world that we are moving towards, everything is being conducted over the internet. That is something that may affect and have an impact on investigations for local authorities.
Keir Starmer
Q But at the moment you cannot say how not having it affects your ability?
Mark Astley: No.
Keir Starmer
Q And what do you think you will get when you get access to internet connection records?
Mark Astley: At the moment, I understand that we are not going to receive that access. Local authorities are not being included in having access to internet connection records.
Keir Starmer
Q No, local authorities are not.
Mark Astley: No, but some of the other public bodies may get access to that. That would give them the front door to the internet provider that they have entered.
Keir Starmer
Q But your network is not just limited to local authorities.
Mark Astley: Currently it is for communications data, as the legislation stands.
Keir Starmer
Q Within your network, what are the other bodies and agencies?
Mark Astley: Can I just elaborate a little bit more about our organisation? We provide a service to assist them in obtaining data and intelligence to assist investigations. However, from a telecommunications perspective, we are only able legally to operate on behalf of other local authorities. We are not able to represent other public agencies such as the Food Standards Agency, although the intention of the Bill is to introduce those collaboration agreements, so we could facilitate that.
Keir Starmer
Q I see, so at the moment, your function is limited in this particular field to local authorities.
Mark Astley: Correct.
Joanna Cherry
Q Your organisation has identified a range of crimes that local authorities use communications data to tackle. Do you think the Bill ought to identify the crimes more precisely to prevent data from being used in relation to, for example, rubbish collection or school places?
Mark Astley: I believe that the process is in place for identifying necessity and proportionality. The three bar process that we currently have in place will deal with that. To actually identify particular legislation could become more constraining and difficult to administer and, as more legislation comes along, more changes may be required to the Bill.
The Chair
Welcome to the panel. In a matter of a few words, please introduce yourselves.
Jo Cavan: I am Joanna Cavan. I am the head of the Interception Commissioner’s Office.
Sir Stanley Burnton: I am Stanley Burnton. I am the interception of communications commissioner.
Lord Judge: I am Igor Judge, the chief surveillance commissioner.
Clare Ringshaw-Dowle: I am Clare Ringshaw-Dowle, chief surveillance inspector.
Keir Starmer
Q Thank you to our distinguished panel for their time this afternoon. I think this is a first—me asking distinguished judges a question. It has always been the other way round for my entire career. I shall try to keep it short and sweet.
Can I start on the issue of the approval of warrants by judicial commissioners under the Bill, and the proposed test? Clearly judges perform different functions every day. One function is to issue a warrant—to search a premises, for example; judges do that day in, day out. They are the decision maker. An application is made to them and they look at it and make their own decision, and they issue or do not issue the warrant as the case may be.
A different function is a reviewing function—a public law function where a judge is essentially reviewing somebody else’s decision. On my reading of the clause on approving warrants, clause 21(1) and (2)—if you do not have it in front of you, I have copies of it—it appears to be clearly a reviewing function. The judge is reviewing the decision of the Secretary of State, not actually making a decision him or herself on the warrant. Do you agree with that?
Sir Stanley Burnton: I do, certainly.
Lord Judge: I agree too, but you have a problem: what do you mean by judicial review?
Keir Starmer
Can I explore that?
Lord Judge: You asked me for a short answer, and that is a short answer. [Laughter.]
Keir Starmer
Q Judicial review covers a range of different approaches depending on subject matter, intensity of review and so on. As worded, how much deference or margin do you anticipate judges will give to the decision maker, the Secretary of State, in exercising these functions?
Sir Stanley Burnton: In theory, you have a complete spectrum. A judge can operate at one end of the spectrum when he just accepts what the authority is putting to him, and at the other end he can be quite stringent in reassuring himself that the statutory tests have been properly applied and satisfied. Frankly, it is going to be the commissioner who will decide—fairly early on, I would have thought—how stringent the test should be in this case. My own view is that it should be quite stringent, approaching the one that was applied in the case of control orders.
Keir Starmer
Q Do you agree with me that as the Bill is currently drafted, it is not clear what Parliament intends, and therefore it will fall to the judges? In other words, it is broadly enough drafted to cover a longer-arm review or a closer intense review depending on what judges decide as cases evolve. It could accommodate both approaches.
Sir Stanley Burnton: It is left to the judges, is it not, to decide what the proper approach is?
Keir Starmer
On this draft.
Sir Stanley Burnton: On this draft. It may be difficult to draft more tightly. The other thing I would say is that whether the judge is a decision maker or an approver, he necessarily has to give a lot of weight to the opinion of the person who is making the application to him.
If the secret service is saying, “Our assessment of this man is that he is a dangerous terrorist”, it may be very difficult to go behind that, and there is no reason why the judge should go behind it unless there is material before him that indicates that that is a wholly unreasonable and unsupported assessment. But you are compelled to give weight to the opinion of the people who are actually involved in whatever the subject matter is.
Lord Judge: I do not go all the way along the route with Sir Stanley about this. I think “judicial review” is a very easy phrase to use. It sounds convincing, but it means different things to different people. People say, “Wednesbury unreasonableness”—that was a case decided by the Court of Appeal in 1948 or 1947, and it has evolved. Personally, I think that when Parliament is creating structures such as these, it should define what it means by “judicial review”. What test will be applied by the judicial—I call him that—commissioner, so that he knows what his function is, the Secretary of State knows what the areas of responsibility are and the public know exactly who decides what and in what circumstances? I myself do not think that judicial review is a sufficient indication of those matters.
Keir Starmer
Q Thank you. Sticking with functions, if I may, as the Bill is drafted, the body responsible for authorising investigatory powers, as we have just described, is also the body responsible for oversight after the event. On the face of the Bill, there is no structural distinction between those functions. Is that sensible, or could it be improved?
Lord Judge: As that is the way in which the surveillance commission works, I strongly recommend it to you. There are different people exercising different functions. The pre-authorisation that goes on in our section of the system involves a commissioner being satisfied—I am sure you all know about the relevant tests—and either agreeing or not agreeing; that is a very important moment. In most cases, happily, because people make responsible applications, they are agreed to. Sometimes it is suggested that they should be amended, and very occasionally they are refused.
That process then unfolds, and whatever happens happens. My inspectors annually inspect the entire force—not just the individual who made the application in the first place, but each police force and each prosecuting authority—to see whether their systems are effective and check, and not just on the ones that have come through, to ensure that the process was brought to an end speedily or, when nothing further happened, that the authorities did not go on too long and so on. It is also to ensure that when the authorisation was originally given, it was founded on proper evidence and then correctly given.
Normally, this has all worked perfectly well, but there is a danger in underestimating the value of the inspectors; I shall come to a different point on that when I can give a longer answer. The process works very well in this way. They report to me as chief surveillance commissioner. I then digest the report and go see the chief constable of each force, or get one of my commissioners to go see them, to say, “This is where you are going wrong, and this is where you must do this and that.”
That is because the inspectors have taken the thing apart. They go to police forces for days; the whole lot of them go to the Metropolitan police for a week. They have the right to see anything they like, and they demand to see it. The commissioners would not be best able to exercise that function, because they are judges. They are not qualified.
Jo Cavan: There are a number of important points around these clauses in the Bill. First, we are really disappointed to see that although the Government are talking about creating a world-leading oversight body, the clauses as currently drafted do not actually create a commission. They simply create an investigatory powers commissioner and a number of judicial commissioners.
When we look at approval by those commissioners, the reality is that they are only going to be approving 2% of the authorisations that will actually be undertaken under the Act—arguably, the more highly intrusive authorisations. The remaining 98% of authorisations will only be overseen post facto, and the reality is that they will be overseen by staff within the commission.
If we look at some of the judgments coming out of the European Court of Human Rights and the European Court of Justice, there are some really important safeguards on post facto oversight, looking at the retention, storage and destruction of material, how it has been used and any infringements or breaches around the acquisition post-approval. We really feel that the Government need to create this body in the clauses.
Keir Starmer
Q One final swift question on thematic warrants and the breadth of the powers proposed in the Bill. Do any of the witnesses have headline concerns that the Committee can take away to work on as we consider the Bill line by line?
Sir Stanley Burnton: First, the existing formulation in RIPA is very unsatisfactory and unclear, and it does not cover many cases in which it would be sensible to have a so-called thematic warrant. However, the wording of clause 15(2) is very wide. If you just have a warrant that gives a name to a group of persons, you have not identified—certainly not in the warrant—all those persons to whom it is going to apply. There could be substantial changes in the application of the warrant without any modification. At the moment, the code of conduct envisages a requirement that names will be given so far as practicable. Our view is that the warrant should name or otherwise identify all those persons to whom the warrant will apply, as known to the applicant at that date.
The other concern is that substantial modifications can be made to a warrant under the Bill with no judicial approval or even notification. That needs to be changed.
Lord Judge: I agree with Sir Stanley. I will not say anything more on the second point he made, but on the first, a part of the process that all of us involved in supervising surveillance attach a great deal of weight to is that we are looking at individuals. There has to be evidence that X requires this, that there is a situation in which it is necessary for this to happen, that it is proportionate in this particular individual’s case and that there is no collateral interference. For example—there are many different examples—why should a women who happens to be married to or living with a man who is suspected and so on have her life entirely opened up in this way? Not having specific identified individuals leaves a very delicate situation. I suspect that the commissioners would find it very difficult to just say, “Well, we’re satisfied. There’s this gang here and they’re all pretty dangerous.” They might not be, and we have to be very alert to that.
Joanna Cherry
Q I have questions for Jo Cavan. In your organisation’s written evidence, you have picked up on earlier concerns about the draft Bill and updated them in the light of the finalised Bill. In the first point, you say that you have concerns about the “aggressive timeline” for the Bill. Can you explain what you mean by that?
Jo Cavan: It is a really complicated and significant piece of legislation. Although I broadly support the Bill, because it is a good thing to put a number of the powers used by the intelligence agencies on a clearer statutory footing and to try to improve transparency, I do think that the scrutiny process has been very hurried. That is of concern because there are some significant privacy implications to the clauses in the Bill. There is still a long way to go towards strengthening some of the safeguards. Also, a lot of the operational detail is in the codes of practice. It is really important that those are scrutinised properly, line by line.
The Chair
Thank you, both distinguished former Home Secretaries. I will not ask you to introduce yourselves because I think that would be a little impertinent of the Chair. Let us go straight to Keir Starmer.
Keir Starmer
Q Thank you both for coming to give evidence to us this afternoon. We are really appreciative. Can I dive in with the question that I think the whole Committee is intrigued by or interested in? You have experience of carrying out authorisations and signing warrants. We know there are a number every day. Can you give us an example of the exercise you both carried out when you were looking at warrants so that everyone in the Committee can understand what the role of the Secretary of State was before, as is now proposed, it goes off to a judge or commissioner?
Charles Clarke: The submission is made by the officials and the services, and says there is a suspected threat in a certain area and that they recommend authorising a power to surveille a group of individuals. The judgment that the Secretary of State then has to make is whether he or she does or does not accept that there is a case for surveilling the individual. According to the time available—some of the issues do not give you a great deal of time to decide what is happening because things can be moving very quickly in both serious and organised crime and counter-terrorism—you might decide to seek more information about the particular circumstances and why the judgment is being made. I think that you would always—I don’t know what John’s experience was—have at least a brief discussion with the officials concerned about the particulars of the case. It would not necessarily be extensive and the longer you are Home Secretary, the more experience you gain of the circumstances in which these sort of things are requested.
I am sure all Home Secretaries take the decision very seriously and seek to come to a judgment about it. I do not know whether that sounds familiar to you, John, but that is certainly how I felt I was trying to deal with it.
Lord Reid: That is roughly the process. Obviously each individual case is somewhat different. Some are hugely different from others. Each individual case may have a different timescale. Without going into individual cases, you can imagine that, certainly on occasions, I had to deal with—I am sure Charles did, too—warrants in connection with an ongoing hostage situation, when there was an imminent threat to life. There is obviously a degree of urgency about that, and that constrains the time for consideration and, no doubt, the time for judicial review.
In Northern Ireland, lives were often plainly at risk. In those cases, you have a time constraint. In other cases, you have a pretty bulky file, sometimes on a renewal. As it happens, we had consecutive periods so, on occasions, I would have got an application to renew a warrant that perhaps had initially been okayed by Charles. Nevertheless, with duty and diligence, you would spend a bit of time going through it yourself—sometimes going through the papers that he went through. In other cases, there might be less information to be examined because it might be—for instance, in the case of an ongoing and imminent terrorist plot—that a telephone number, a name or some association had been picked up tangentially in relation to someone else that you had been looking at for some time.
The only other thing that I would say is that I suspect that, during the time that Charles and I were Home Secretary or, indeed, in any other position authorised to issue intercepts, because of the exponential rise of communication through cyber and the internet, the number of applications would be getting greater and greater.
Charles Clarke: Can I just add one point, Mr Starmer? There is an important conceptual point here, which is that modern detection of organisations which are criminal in intent—serious and organised crime, and terrorism—is basically about building up a pattern of what networks of relationships exist between different people.
You collect information, as John just implied, about particular nodes of the situation. Then the question is what forms of communication they have with others and who they are communicating with in order to try to better understand what the actual networks are and who is talking to who and, in certain circumstances, what they are actually intending to do. That is just the background that you should have in your mind when thinking about what kind of surveillance requirements are necessary to look at that.
Keir Starmer
Q I know there is no such thing as a typical case because they are all shapes and sizes but, in the main, would you have expected a signed statement from somebody setting out the case for necessity and proportionality—why it was necessary—and drawing your attention to the relevant material?
Lord Reid: Yes. That would be the top introduction, but there may well be further papers behind it. In some cases, there may be papers behind it in some depth.
Charles Clarke: If the question is whether there would normally—I am trying to think whether there is any exception to this—be a recommendation by an official based on the data that existed, the answer is yes. I am trying to think whether there are any exceptions to that. I cannot think of any offhand.
Peter Kyle
Q One of the innovations of the Bill is the double lock. When you were Home Secretaries, most warrants would have been signed just by the Home Secretary. Will the knowledge of having judicial oversight and a second authorisation before the warrant comes in change the behaviour of the Home Secretary when approaching the decision?
Charles Clarke: I tend to doubt it. Speaking for myself and, I am sure, for John—actually, for all Home Secretaries I have ever discussed this with—we have all been exceptionally aware of the severity and seriousness of what we were looking at. I do not think that the idea that there was going to be a judicial review of what we were doing would have changed our behaviour significantly. There is quite a serious, in-principle issue about the role of the judge as opposed to the role of the Executive.
I saw you taking evidence from Lord Judge just now. I bumped into him as I was coming in. The question of the relationship between the judiciary and the Executive is a key point. I gave evidence on it to the House of Lords Constitution Committee in 2007 because I think it has all been changed by the Human Rights Act 1998. I think there has been insufficient consideration of the changing nature of the relations. In response to your particular point, Mr Kyle, I do not believe that there would have been a significant change in behaviour.
Lord Reid: I do not think there will be a change in behaviour from the point of view of the person who is ultimately accountable to Parliament for the decisions, which is the elected Member and appointed Minister. Probably even before RIPA, which I think Charles took through the House of Commons, there was an awareness that there were degrees of oversight and you were working within certain constraints and certainly with oversight.
I confess that where I would worry—you would perhaps say, “Well, he would, wouldn’t he? He was the Home Secretary.”—is in case the judicial oversight became a co-decision. I think that is a recipe, in some cases, for obstacles to the efficient operation of aspects that I mentioned earlier, for instance in a hostage situation. I know that allowances are being made for that.
I guess that the additional oversight—judicial oversight—that is in the Bill is a result of a number of factors. One is the concern—I do not know whether it is public concern; I do not think it is, but it is certainly published concern—over the Snowden revelations, the general distrust of politicians and the fact that there was a Liberal-Conservative coalition. All of this is compromise, is it not?
I have no in-principle objections to it, provided that the first decision is made by the person accountable for it, through Parliament, to the public and the role of judicial oversight is the judicial element of it.
Investigatory Powers Bill (First sitting)
Keir Starmer Excerpts(8 years, 8 months ago)
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The Chair
Welcome, Mr Anderson. Before we start, do any Members wish to make a declaration of interest?
Keir Starmer (Holborn and St Pancras) (Lab)
Thank you, Ms Dorries. May I make a declaration of interest in relation to this witness and a number of other witnesses generally? I know this witness and some others; I have worked with them both as a lawyer and as Director of Public Prosecutions. I therefore put that on the record—if I may make a general declaration, it applies to Mr Anderson and quite a number of the witnesses today.
The Solicitor General (Robert Buckland)
Ditto. I know many of the witnesses as well.
The Chair
Okay; that is all the interests out of the way. We will now hear oral evidence from David Anderson QC, independent reviewer of terrorism legislation. Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill, as always, and that we must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 12 noon. Could the witness please introduce himself for the record?
David Anderson: I am the independent reviewer of terrorism legislation and the author of the report “A Question of Trust”.
Keir Starmer
Q It is a pleasure to serve under your chairmanship, Ms Dorries. Good morning, Mr Anderson. There are obviously a lot of people around the table whom you know, going by the declarations of interest. May I go straight to one of the central issues in your report, which was the need for an operational case for the powers in the Bill, and particularly the bulk powers? Having now had the opportunity to see what has been published between the Joint Committee report and the publication of the Bill, are you satisfied with the operational cases that have been published?
David Anderson: I was pleased that the Joint Committee recommended that a detailed operational case should be served in relation to each of the bulk powers. I was a little sorry that it did not also recommend a detailed operational case in relation to the police use of targeted equipment interference. I do not think I have seen the case for why that should be necessary in addition to the powers they already have under the Police Act 1997 on property interference.
In terms of the case itself, I salute GCHQ and others for being able to produce a 47-page case in circumstances that are very much about not being fully transparent about exactly how the powers are going to be used. One needs to know what the powers are, and it seems to me that, for public consumption, they have done a pretty good job that should enable Parliament to debate whether those powers are necessary or not.
I also believe, because I have seen it, although not read it, that they produced a detailed secret annex to that operational case, which was provided to the Intelligence and Security Committee. I noticed that when Dominic Grieve, the Chair of that Committee, made his speech on Second Reading of the Bill, he said that he—and I think, by implication, the Committee—was satisfied that each of the powers sought was necessary and proportionate. If the Committee has satisfied itself of that by reference to the detailed operational case, including the secret annex, that is very reassuring for all of us. If it has not, no doubt it will wish to do as the Bill completes its passage.
Keir Starmer
Q May I follow up on that? First, so far as operational cases are concerned, do you think there is still a need for an operational case for the police use of equipment interference powers? Secondly, is your view that the ISC should formally indicate whether it has considered the material and is satisfied with what it has seen, rather than implying it in a speech? Thirdly, do you think there is a need for an independent assessment of the operational case? It is one thing to publish it and to put material before the ISC; it is another to have it independently assessed. Apologies for asking three questions, but should a case be made for police use of equipment interference powers; should the ISC be called upon to formally indicate its response to what it has seen; and do we need an independent assessment of the operational cases in full?
David Anderson: On your first question, I pointed out in my written evidence of January to the Joint Committee that, so far as I could see, there had been no detailed operational case on police use of equipment interference powers. From my point of view, I would like to see it. So far as the ISC is concerned, it is not for me to say what it should and should not do, but I am mindful not only of its duty to serve Parliament, but of the fact that when the courts, and particularly the European Courts, come to look at the bulk powers, as inevitably they will, it will be of great interest to them, one imagines, to see just how much evidence was put forward in relation to the necessity for the case and who considered that evidence.
As to whether there should be, as you put it, independent review in addition, I am not persuaded of the case for that. The ISC demonstrated its independence in the most dramatic way possible in its report of early February when it declared that it thought that there was no need for one of the bulk powers—bulk equipment interference. Now, it may be that there has been some rowing back from that position, judging again from the speech of Dominic Grieve on Second Reading, but I think that it would be very difficult to say that the ISC had not had an independent look at these issues.
Keir Starmer
Q Can I ask you about bulk powers? From your experience, could you start by giving the Committee an indication of the scope of some of the bulk powers and warrants, perhaps by reference to the equipment and interference bulk powers?
David Anderson: The bulk powers, of course, are extraordinarily broad in scope, although the practical effect of that breadth is greatly limited by what happens after the line has been tapped or the device has been accessed. That is really the stage that makes it proportionate. My concern, particularly in relation to equipment interference, is that, if one looks at the so-called targeted power and, in particular, at its potential thematic use, it is quite extraordinarily broad. We are looking, I think, at clause 90 of the Bill. A so-called targeted equipment interference can be performed—devices may be subject to equipment interference if they are concerned in an operation or an investigation, or if they are in a location not defined.
The code of practice indicates that that power is very broad indeed—so broad that the ISC said:
“The so-called targeted power appears to be very broad. We are not quite sure what, in addition, you would get from the bulk power.”
I think that matters because the safeguards on the targeted power are less than the safeguards on bulk. For a start, you do not need to be aiming only at somebody outside the UK or people outside the UK. You can quite properly target it inside the UK. Secondly, you do not have the safeguard that you have with a bulk power that, if you are going to look in detail at one individual within the UK, you need a full individual warrant as well.
The commissioners have been very cautious in the past in allowing thematic powers to be too broad. One could say, “Let’s put it all on the commissioners. Let’s rely on them to make sure that the thematic power is not too broadly used.” I would feel a little more comfortable if there were more constriction in the statute.
Keir Starmer
Q One of the safeguards is the need for necessity in relation to bulk powers. From your experience, how easy or difficult is it to demonstrate necessity in relation to bulk powers? Give us an idea of the way the test actually operates in your experience.
David Anderson: I have seen the detailed warrant applications that currently go usually to the Foreign Secretary in relation to a bulk power. They currently have an extremely broad range of purposes that the bulk power is said to serve. I am sure that it is all very carefully considered by the warrant granting department at the Foreign Office and then by the Foreign Secretary. There will certainly be much stronger safeguards under the new Bill, and I welcome that.
Keir Starmer
Q Can I take you from bulk to internet connection records, which you dealt with in your report? There have been comments about and criticism of the definition—or lack of definition—of internet connection record. Looking at the version in the Bill now, do you have any concerns about the definition?
David Anderson: I last looked in detail at internet connection records almost a year ago now, and even an operational case had not been made. There certainly had not been the dialogue with communication service providers that would have been necessary to make it work. I am afraid that I have not followed in the same technical detail as the Joint Committee on the Draft Investigatory Powers Bill and the Select Committee on Science and Technology the arguments on the extent to which they have been properly defined, the extent to which it will be feasible to produce these records or, indeed, how much it would cost. Therefore, I cannot, I am afraid, raise any alarms on that or give you any reassurance, save to say that these would appear to remain live issues.
Keir Starmer
Q ICRs are obviously new and developing in real time, but there are a number of other novel and contentious areas in the Bill. Do you see any role for greater independent authorisation in relation to some of these new techniques or powers?
The Chair
Order. Mr Starmer, can you make that your last question, please, because it is already 11.45 am and I think other people would like to ask some questions?
The Chair
Yes, but as briefly as you could, please. If not, you can provide a written answer.
David Anderson: Internet connection records are a form of communications data. I said rather conservatively in my report that there were some forms of communications data that should be independently authorised, including novel and contentious ones. One of the respects in which the Bill did not really follow my report—I should add that in most respects it did—was in not providing for that outside the protected categories of journalists, lawyers and so on. I could well understand it if members of the Committee or others were to take the view that ICRs were of such a nature that to allow self-authorisation by the police might not be a sufficient safeguard.
The Chair
Q We will now hear oral evidence from Don’t Spy On Us and Liberty. For this session we have until 12.30 pm.
Welcome, and thank you for coming. Will the witnesses please introduce themselves for the record?
Eric King: I am the director of Don’t Spy On Us, a coalition of non-governmental organisations in London who are concerned about surveillance.
Sara Ogilvie: I am a policy officer at Liberty, which is a UK-based human rights organisation.
Keir Starmer
Q Because we do not have much time, I would like to ask Eric King some questions about bulk powers and then Sara Ogilvie some questions about internet connection records.
Eric King, do you have any concerns about the definitions and scope of the bulk powers in the Bill?
Eric King: It is important to understand the level of interception that takes place by our agencies and that will continue to take place under the warrants. My view is that bulk interception as it is currently practised by GCHQ is not a proportionate act and is not strictly necessary. The reason why is that, at the moment, we know from the ISC that there are just 10 warrants, which are authorised every six months, that permit the interception of 50 billion pieces of communication every single day. As a lawyer looking at that, I struggle to be imaginative enough to understand how you could craft a warrant that would appropriately assess the proportionality equation at that moment, given the scope of what is taking place.
The reality of how our signals intelligence agencies work is that, once those 50 billion communications are intercepted, the vast majority of GCHQ’s expertise is in automatically processing that and analysing it into what it calls query-focused datasets. We do not necessarily need to understand all that, but it suffices to know that GCHQ touches it in such a way that it results in significant intrusion on those communications.
Keir Starmer
Q Can I press you on that? To some extent, we are proceeding on the basis that there are two exercises involved when it comes to bulk powers. The first is the acquisition or holding of the data, and the second is, at some subsequent time, the accessing of those data, subject to different thresholds. Is it as simple as two distinct exercises, or is there more to it than that?
Eric King: There is considerably more to it than that. The intermediary stage—the point at which you have collected the material—is really just the first assessment. From that point, GCHQ’s computers begin processing the material and providing analytics on it—for example, voice transcription or keyword analysis, or they might be doing facial recognition on certain imagery.
There is one programme that we know about called Optic Nerve that resulted in GCHQ intercepting 50 million pieces of webcam traffic, which included 3% to 11% of material that was undesirable nudity. Once that was collected, GCHQ deployed facial recognition on it. There is no warrantry stage at that point. It has already been collected under those 10 warrants. All the processing is done without any authorisation. It is only at that final bit that you highlighted, when an analyst may wish to look at it, that we have an additional safeguard.
Keir Starmer
Q Given your concerns, do you have alternatives that you think would serve the same purpose as some of the bulk powers?
Eric King: My starting point is that there needs to be formidable intrusive powers for our agencies to operate, but they must be targeted. When you are targeting it can be difficult and you can have some additional collateral around the targets you are seeking to obtain communications about, but it has to be proportionate collateral. At the moment, I just do not see how we can put our hands on our hearts and say that we are doing that properly.
I think there are a number of different models we could be looking at. In the US they have judicial authorisation of selectors that are put in place, all of which focuses on warrants being targeted at individuals, rather than on infrastructure or cables, which I think is not proportionate.
Keir Starmer
Q When you refer to selectors, I think you are referring to what happens in that middle period, between initial acquisition and later access.
Eric King: That is exactly right. We know that GCHQ has 50 billion targeting identifiers—these are the selectors. A simple one would be an email address or a phone number; a more complicated one might be an email signature or something like that. That is the reality of how the systems are genuinely processed, and those are the sort of places our law should be constructed around. It should be constructed around the technical and operational reality of how our agencies work, to ensure that our law is constraining how our agencies operate, rather than the technical ingenuity of the engineers at that point.
Keir Starmer
Q Your evidence is that much of this happens before the final access thresholds apply.
Eric King: Absolutely. GCHQ analysts do not wish to look at most material themselves. The main reason for that is that it is time consuming. If you can programme a computer to do the heavy lifting, to do the intrusion, the processing and the analysis, that is to their advantage, and that is where they have put that. The problem with that is that our legal framework does not recognise that shift in massive computing power intruding on those communications in a very sophisticated way.
Keir Starmer
Q Can I turn to you, Sara Ogilvie, on internet connection records, in particular? I know that Liberty has got a number of concerns about the powers in the Bill in relation to internet connection records. Could you give us a brief summary of the main headline issues from your point of view?
Sara Ogilvie: The problem with internet connection records, from what we have seen, is that they do both more than they are supposed to and less than they are supposed to.
In terms of doing more, it is clear that they will create a database of the internet connections that take place day in, day out of every person across the country. That is a terrifying amount of information to store either in one place or across a number of different databases. It creates a clear impression of what you are doing, with whom you are communicating, what issues you have in your life. That can involve some very confidential and private information. I have real concerns about that.
In terms of doing less, I am not as technologically minded as Eric but it has been made clear to me that what these powers are supposed to do is deliver certain information that can be used by law enforcement or the security services, perhaps to deal with paedophiles and undercover unlawful internet site usages. It seems clear that, given the bulk nature of these powers, they will not deliver that kind of information in a helpful manner. If anything, it seems more likely to drive criminals to use bits of the internet that will not be captured by the service. On the one hand, we have clear evidence of the things that law-abiding citizens are doing, but on the other hand, we do not have evidence on what criminals are likely to be doing.
Joanna Cherry
Q To be clear, Mr King, is your evidence in relation to bulk interception and collection of data that there is intrusion and analysis of them by computer programs prior to any warrant being applied for?
Eric King: No. There will be warrants at the collection stage but at the moment it is simply 10. Those 10 warrants that are authorised every six months permit the agencies to intercept at an extraordinarily large scale: 50 billion connections every single day, and growing. We know that, in the past five years, that has increased by 7,000%. I say that those 10 warrants do not appropriately assess the proportionality requirements, and I do not think they are necessary in the current climate.
Keir Starmer
Q Lord Evans, I think this one is for you. The bulk powers in the Bill are used differently by different agencies. Some are relied on by the security and intelligence agencies more than others. There is a notion that the bulk powers operate in the sense that there is a power to acquire or hold a great deal of data and then, at some later stage, there is targeted access on a different threshold, and that those are different safeguards. The reality is that quite a lot happens between those two stages, whether one calls it analytics or anything else. Can you tell us from your experience what happens in practice in that middle bit between first hold and later access?
Lord Evans: This is not a real example, but it might exemplify how one might use the power, certainly from a counter-terrorism point of view and from MI5’s point of view. If you look at the current situation, we are obviously very concerned about what has happened in Belgium and we are very concerned that there might be other IS active units in the UK. We do not want any of them to attack here, but we may not know who they are. In a sense, we are therefore trying to find individuals who might be members of IS and who might threaten us, but we do not necessarily have much information about who they are in specific terms.
For instance, although this is not a real example, using bulk access you might say, “Let’s have a look at all individuals from the UK who are known to have travelled into or out of the middle east and the area around Syria over the past six months. Let’s look at everybody who has a mobile telephone and has been in Syria or northern Iraq, and it’s pinged so we know that there is a telephone in that area.” We might say, “Let’s look for data on individuals who have been in Molenbeek,” because it looks as though quite a lot of the problems have emerged from that particular part of Brussels.
Put all those elements of data together and you will end up with perhaps a few dozen, some scores or one or two hundred individuals or, at least, telephones or something that might be relevant. You might then say, “Let’s take all those phones and see which of those telephones has been in first or second-order contact with known extremists.” Either they have been in touch directly with someone known to be a violent extremist, or they have been in touch with somebody who in turn is in touch with violent extremists. That might refine it down from 150 to half a dozen. Then you might start to think, “Actually, there’s quite a high likelihood, although one cannot be certain, that these half a dozen might be people of security interest in their own right.”
At that point, having gone through those various layers of putting different sorts of data together, comparing, contrasting and seeing what comes out, you might say, “Perhaps for those half a dozen, some more targeted form of surveillance is justified, so we can see who they are.” Once you have done that, if you get the appropriate authorisations, you might then find that some of them are self-evidently not, because they are BBC journalists who have been following the story or similar, so you can put them aside. But you might find that you have one or two who look as though they might be IS activists who have been in touch with the relevant people, so you put some resource into establishing what they are doing and who they are associating with.
That sort of process is very much the way in which MI5 has used these sorts of capability over the last 10 years or so, and it has been an absolutely central part of how we have identified individuals who have been involved in terrorist planning. That is then fed through into more intensive investigations, enabling us with the police to prevent attacks from taking place.
Keir Starmer
Q In a sense, what you have described is a stripping away of the bits you do not want to look at so that you can focus on the bits you do want to look at, in the particular context that you gave.
Lord Evans: Correct.
Keir Starmer
Q Is there any general analysis done to data in order to assist that? All data must be put through a level of analysis to make it easier to carry out the sort of exercise you have just described.
Lord Evans: I cannot think that there is that sort of general analysis. You could imagine starting from lots and lots of data and trying to work your way through a general process to identifying unknown terrorists. That is something that books and so on have talked about, and we have looked at it, but in general, in a non-specific sense, trying to identify patterns that in themselves indicate that somebody is a national security threat is very difficult, because you will have so many false positives. It tends to be used to answer specific operational questions rather than a wholesale review of data ab initio, because if you do that, the chances of finding somebody that you are really concerned about are very low.
In terms of operational reality, the problem for MI5—it certainly was during my time as director general, and I suspect it is still the case—is not finding people with no known connections who have ill intentions; it is finding out more about people who are already associated in some way with violent extremism. It tends to be in support of particular operational requirements and particular investigations, rather than a much more generalised process.
Keir Starmer
Q Can I turn briefly to equipment interference bulk powers? I do not think you were here when David Anderson gave his evidence—this may apply to you as well, Mr Inkster—but he raised a concern about the breadth of those powers. In particular, I think he said that what is called targeted is in fact so wide that it does not really fit with the notion of targeting. That chimes with the suggestion that it is very difficult to define necessity and proportionality in relation to those particular bulk powers. Can you assist the Committee with why, with those bulk powers, there is that problem of definition that David Anderson is concerned about?
Nigel Inkster: I will do my best to assist the Committee, but I should emphasise that I do not have a signals intelligence background and we are talking about capabilities that were in their infancy when I was still part of the intelligence community, so I am looking at this more from an academic perspective and with no privileged access—I no longer have any security clearances.
The issue is that the technologies are evolving so fast and in so many different directions that it can be very difficult to start from a clear perspective of what represents a proportional approach in certain cases. It seems to me that, in this particular set of circumstances, we have to make some allowance for a degree of trial and error—to see whether certain things actually deliver the kind of outcomes that were hoped for, but to be ready to cease using them and move elsewhere if they do not deliver the sort of results that would justify the kind of level of intrusion that we are talking about.
It is very context-specific. For example, if you are looking to try to thwart the attempts by a particular regime to illicitly acquire nuclear weapons capability, your target set defines itself relatively more easily than in certain other cases—transnational terrorism would be one of those where it is much more difficult.
Keir Starmer
Q I have one final question for either or both of you. Am I right in thinking that, as far as internet connection records are concerned, although the security and intelligence services would not say, “There are no circumstances in which we’d really need them,” in reality, they are relied on much less by the security and intelligence agencies than by law enforcement, as a separate component?
Lord Evans: It is not impossible that they could be of value in an intelligence sense, but I think the principal driver for using them or for obtaining them is for evidential purposes, and that is made clear publicly. It is principally a law enforcement and evidential issue to inform cases coming before the courts more often than it is an intelligence issue. You could construct a scenario in which it might be of value, but the purpose of putting them in the Bill, as I understand it, is law enforcement and providing criminal evidence.
Joanna Cherry
Q Lord Evans, I want to ask you about the savage murder of Fusilier Lee Rigby and the Intelligence and Security Committee investigation into that. It reported to Parliament that his killers had previously come to the attention of the Security Service on multiple occasions and that, in its view, intelligence reports were mishandled. I think I am right in saying that its inquiry suggested that, if the Security Service had more resources to cover more and lower-priority level targets, the outcome could or would have been different. Would you like to comment on that?
Lord Evans: The Lee Rigby murder took place after my time as director general—not that there is any connection between those two—so I am not very close to the actual facts. In general, one of the critical decisions—certainly for MI5, but it applies by logic to other people on counter-terrorism—is what you do not do. We have more leads which might connect to possible terrorist attack or to violent extremism than we can thoroughly investigate at any one time, so the service has created a quite rigorous triage process that ranks the seriousness of the available information, which is updated on a regular basis, and that drives therefore the allocation of resources.
The difficulty here is self-evident: obviously, sometimes you are working on the basis of fragmentary intelligence or unclear intelligence, so you have to make the judgment as to whether you put resources in to pursuing that or whether you put the resources in to something else. The fact is that sometimes you make a judgment on the available best evidence and then find out later that, actually, the situation was more serious than was apparent. That appears to have been the case with Lee Rigby.
Exactly the same issue came out after the 7 July bombings in London. Mohammad Sidique Khan had appeared in the context of Security Service investigations and police investigations a couple of years before. At that stage, he was assessed to be not a very serious threat and therefore he was put aside so that we could come back to him later while we did other things that were more immediately pressing, but in the interim his activities developed.
It is a problem. The question of course is: how do you get around that problem? The first thing is to use the best quality information available. The second is that the more resources you have, the more yesses you can give as to whether we investigate any one individual, but then you get into a judgment about how many people we think it is proportionate and necessary to investigate. If you doubled the resources of the Security Service again, there would still be cases where you might say, “We don’t have the resources to pursue that.” You ultimately get into a political judgment as to how much resource you want put into this and how much intrusion you have into the activities of people who might not be quite as threatening as others. That is a judgment that has to be made.
Keir Starmer
Q I have just a short supplementary question on bulk datasets. There is a great sensitivity about some datasets. People might not mind if their flight details are kept, but they do mind a great deal if, for example, their mental health records are collected. If there was some extra provision in the Bill for sensitive or highly sensitive data, would that cause you any concern, assuming that in any given case you can get over the threshold?
Lord Evans: Our internal processes when we were going down this path did take these issues into consideration. As you say, health records are extremely sensitive, so you would need an extraordinarily high level of justification. If you wanted to externalise that into the process—I have not talked to anybody about this so this is my feeling on it—then as long as you are really talking about very, very intrusive datasets, I would not have thought that having an additional safeguard would be a showstopper.
Keir Starmer
Q So if it was to externalise what was internal practice, which is obviously based on experience, that would not be a showstopper.
Lord Evans: I would not have thought it was a showstopper. You are going to hit definitional issues. It is a bit like journalists and politicians kind of stuff.
The Chair
I am afraid that brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank our witnesses for their evidence.
Investigatory Powers Bill
Keir Starmer Excerpts(8 years, 8 months ago)
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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.
Child Refugees: Calais
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James Brokenshire
I agree with my right hon. Friend. We have established a very close working relationship between the UK and French Governments, and between the Home Secretary and Bernard Cazeneuve. There are regular meetings at that level and at operational level, highlighting the exchange of expertise to which I have already referred. My right hon. Friend is right; we will need to maintain that sort of support in the months and years ahead.
Keir Starmer (Holborn and St Pancras) (Lab)
I thank my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) for raising this issue. The Opposition have repeatedly raised the plight of the 26,000 or so unaccompanied children in Europe, who are in desperate need of protection. I listened to what the Minister said this afternoon, and I have listened to what he has said before, but there is, as my right hon. Friend has said, a reality gap here.
I have been to see the camps in Calais and Dunkirk for myself. The squalor is hard to describe, and it is worse in Dunkirk than it is in Calais. There are 300 or so unaccompanied children in Calais, and they are not there by choice. In Dunkirk the conditions are such that the volunteers—there are only eight of them—are so busy trying to keep people safe and provide them with somewhere to sleep that they cannot even count the number of unaccompanied children. There is no process on the ground for these children, there is no meaningful advice for them and the reunification rules are not working. That is the reality on the ground. We have to start from that position. That was all borne out by the judgment of the upper tribunal in January.
The situation is now urgent because of the action that has been taken today. I urge the Minister to look at the issue again and consider what practical support can be given in the next 24 hours to these desperate children, who until now have not had the support they need.
James Brokenshire
The joint declaration signed between the UK and French Governments last August actually provides for the direct financial support that we are giving to the French Government to provide the centres outside the immediate area of Calais. Indeed, as I have already highlighted, there is the Jules Ferry centre, and there is the work we are doing on a regular basis to identify and highlight the appropriate support that is there. I stress again: there is no need for people to be in those conditions. There are services—[Interruption.] There are facilities and services away from the camps that are available to support people. We take our responsibilities seriously, which is why—[Interruption.] The hon. Member for Hackney North and Stoke Newington (Ms Abbott) keeps interjecting from the Opposition Front Bench. We are working closely with the French Government to see that there are experts in place, and I have already indicted that an additional person is going out next week to see that there are procedures in place so that there will be efficient and effective reunification for what I judge to be a small number of cases. However, support and alternative accommodation are available in France, and I would urge people to take up those choices.
Draft Immigration (Health Charge) (Amendment) Order 2016
Keir Starmer Excerpts(8 years, 9 months ago)
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Keir Starmer (Holborn and St Pancras) (Lab)
It is a pleasure to serve under your chairmanship, Mr Bailey.
As the Minister outlined, this order amends the 2015 order. The Opposition did not oppose the 2015 order and we do not oppose this amendment to it, but I would like to raise a number of issues. First, the Minister has given us the anticipated revenue figure of £41 million. Will he update us on how much has been raised so far from the changes made under the 2015 order? Last year he said he would publish the revenue details after the first year of implementation. Is that still the intention?
Secondly, the Minister outlined how the short-term arrangements with Australia and New Zealand will work, but the amendment obviously affects the long-term arrangements. Is there any possibility of reciprocal charges being levied by the Australian and New Zealand Governments on UK citizens living there and, if so, what will those arrangements be?
Finally, the per annum cost to the NHS of non-EU citizens is said to be £950 million, which I think is what drove the original order and what drives, to some extent, this amendment. The aim of the policy is to ensure that people make a fair contribution to the costs—we agree with that in principle—but many of these people come here to work and thus pay tax and national insurance. Does the Minister know the proportion of people paying the levy who are, in fact, in work and are therefore making the contribution to the NHS through their taxes? Can he tell the Committee what the net cost is, once taxes are taken into account, of those people’s use of the NHS? I appreciate that he might want to get back to me on that in detail.
Oral Answers to Questions
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Mrs May
As I said in response to the hon. Member for Redcar (Anna Turley), Border Force takes a more intelligence-led approach to such issues, which means it can be flexible in deploying staff at different ports. That is precisely because it recognises that we need not only to focus on one or two ports, but to have that flexibility across a range of ports.
Keir Starmer (Holborn and St Pancras) (Lab)
One of the most powerful arguments for the UK remaining in the EU is that we need and rely on a strong EU co-ordinated approach to security, including at our borders and our ports. As the Secretary of State and I know well, we rely 24/7 on EU criminal justice and security measures. In those circumstances, I assume that the Home Office has carried out a risk assessment of the impact of UK withdrawal from the EU on security at UK ports. Where can members of the public who have not yet decided how to vote in the forthcoming referendum access the conclusions of that risk assessment?
Mrs May
I am not sure whether that is parliamentary language for me to repeat in relation to the hon. and learned Gentleman. None the less, he can rest assured that arguments in relation to those matters will be fully set out for people over the coming months. He will know from his involvement in a different capacity before coming to this House one of the arguments that I put regarding issues such as the operation of various justice and home affairs measures. As a Government, we have set out very clearly the benefits of being part of those measures.
Keir Starmer
Tony Smith, interim head of the UK Border Force from 2012 to 2013, said today that a vote to leave the EU would pose significant policy and operational issues for Border Force, which is already under huge pressure, not least because of budget cuts, year on year, for many years. In particular, he highlighted the fact that Border Force staff would have to carry out more stringent checks on EU citizens. Will the Secretary of State confirm today that, far from reducing those levels of concern, Border Force will in fact face even more cuts, year on year, for the foreseeable future?
Mrs May
What I am happy to say to the hon. and learned Gentleman is that anyone who comes to the UK border will be stringently checked. We are doing that on a much more intelligence-led basis in looking at individuals who might be of concern. Yes, he is right: we have interactions with other member states in the European Union through the use of things such as Schengen Information System II to ensure that we are able to identify people of concern who are coming across the border. Border Force’s other operations are not about people but about restricted and illegal goods being brought into the UK. The intelligence-led approach can be particularly helpful in identifying areas of concern and whether action is being taken appropriately.
Migration into the EU
Keir Starmer Excerpts(8 years, 9 months ago)
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Keir Starmer (Holborn and St Pancras) (Lab)
It is a pleasure to serve under your chairmanship, Mr Rosindell. I, too, thank the hon. Member for Gravesham (Mr Holloway) for securing this debate. It is really important to discuss these issues, even if there are deep divides between us on the right way forward. The challenge of migration into the EU is clearly a huge one. Last year it was the biggest challenge in a generation. All the forecasts are that migration into the EU is likely to be greater this year than last year, so there is no doubt as to the nature and scale of the challenge.
Syria has been discussed this afternoon. When we look at the size of the challenge, it is worth reminding ourselves of the figures in relation to those fleeing Syria: 13.5 million of the population of 22 million are in dire need and 6.6 million are displaced, of whom 4.3 million have fled abroad. That is a huge issue that will be even bigger this year. Last year, nearly 1 million of those fleeing from Syria claimed asylum somewhere in the EU.
It is important to reflect on the causes of migration into the EU, which are predominantly persecution; gross human rights abuses; extreme poverty; and climate change. We can find all those causes reflected in any refugee camp in Europe. I was in Calais, which the hon. Member for Gravesham mentioned, and Dunkirk at the beginning of January. In Dunkirk there are many families. One of the men spoke to me and explained that he had fled from Kurdistan as a result of ISIS taking over his town, and he ended up in Dunkirk. There are lots of different reasons why people are on the move in the numbers that they are.
The first imperative in dealing with the challenge is joint international work upstream to try to reduce the conflicts that cause so many people to leave in the first place. I concur with the comments about how the vast majority of people from Syria would very much prefer to be back in Syria at the first opportunity. We must have upstream work to de-escalate conflict, and we must work with our international partners wherever we can to reduce the likelihood of people having to flee their home country.
There is also the question of people smuggling. Our Government and various Departments are working jointly with partners in Europe and beyond to deal with people smuggling, not only in Europe but upstream. My staff in the Crown Prosecution Service were involved in that when I was the Director of Public Prosecutions. Again, that is work that needs to be done upstream.
As for our contribution to rescuing those who are desperate and at risk of losing their lives, I thought it was a wrong turn when we withdrew some support for the rescue operations. I am glad that we are now fully engaged in those exercises on the Mediterranean again. Assuming that all that work is carried out, we then have to consider how to process individuals quickly when they get to Europe.
I have been pressing for some time on the issue of family reunification. There are rules, such as the Dublin III agreement, on family reunification and the rights of some of the people who are currently in Europe to reunite with family here. In some of the camps, such as Calais and Dunkirk, it is absolutely clear on the ground that those rules are not working in practice. We could do more about the refugee crisis than we are currently doing. Of course it is welcome that we are relocating 20,000 people from the camps outside Syria, but, along with others, I am concerned about the number of unaccompanied children in Europe. It is not only about the number, but the fact that more than 1,000 have disappeared. They are particularly vulnerable, so I urge the Government to do more for unaccompanied children.
We must also address the question of how we support people if and when they arrive in this country. This is the second of three Westminster Hall debates on refugees and migration. We had a debate this morning on the support for asylum seekers when they arrive in this country and how the contracts to provide accommodation are not working as they should.
The central point of this debate was made by the hon. Member for Central Suffolk and North Ipswich (Dr Poulter): in the light of the scale of the challenge and the reality of the steps that need to be taken, leaving the EU will not help. We need to be playing our part upstream to reduce conflict, playing our part in rescuing those who are desperately in need, and co-ordinating the response to the challenge in Europe. I do not think that there are many Members of this House, or many members of the public, who genuinely think that we should simply step away from Europe, or who think we should recognise the huge numbers of people fleeing into Europe and the desperate conditions from which they are coming and simply say, “It’s not our problem. We will somehow exit from Europe and play no part.”
Pat Glass
Does my hon. and learned Friend agree that, if we exit Europe, unless we become a city state like Singapore—a tax haven on the edge of Europe—and have absolutely no trade agreements with Europe, we will still be subject to all the surcharges on everything we make and export? Unless we do that, we will have to abide by the rules and regulations that apply for all EU member states, along with those states that trade with them, such as Norway and Switzerland. That includes the rules on the free movement of people. Whether we leave or not, it is not going to make any difference to the free movement of people across Europe.
Keir Starmer
I am grateful to my hon. Friend for that intervention. I agree. I have tried to make a similar point about criminal justice measures. A number of EU criminal justice measures are critical in the UK and used 24/7. Almost all those involved in criminal activity above a certain level operate across borders, and we rely heavily on EU criminal justice measures to combat that activity. By that I mean that we locate our own staff in Europe and are co-ordinating with our partners all the time. Without those measures, we would be at much greater risk in relation to criminal justice.
If we come out of the EU, I accept that there is no rule to prevent us from trying to renegotiate the economic and criminal justice measures, but it would be a very difficult renegotiation that would, in all likelihood, take us back to precisely the same measures. Take, for example, the European arrest warrant. It is extremely unlikely that our European partners would negotiate with us an approach to such warrants that was different from the existing arrest warrant. We would therefore step outside Europe and have to renegotiate the same provisions as we have now, but we would lose all influence. I saw that when I was Director of Public Prosecutions: the moment the Prime Minister suggested that there was going to be an EU referendum, our voice around the table on what future measures should be crafted to deal with crime was reduced in both volume and influence.
There is also a point of principle, touched on by the hon. and learned Member for Edinburgh South West (Joanna Cherry), as to whether we really want to retreat from the world stage or play our part. We see our role in the world as one in which we will involve ourselves in, for example, the conflict in Syria. The argument that the Prime Minister made to the House before the vote on Syria was premised on our responsibility as a nation state to play our part in combating Daesh. That is the sort of nation that we are: we want to play our part in combating Daesh. I voted against the motion before the House, but not because I disagreed with the principle that we should play our part internationally to resolve the crisis in Syria. So, too, with humanitarian aid—
Asylum Support Contracts
Keir Starmer Excerpts(8 years, 9 months ago)
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Keir Starmer (Holborn and St Pancras) (Lab)
It is a pleasure to serve under your chairmanship, Mr Stringer. I thank my hon. Friend the Member for Cardiff South and Penarth (Stephen Doughty) for securing the debate and for the powerful speech he made at the beginning of it. I pay tribute to all this morning’s speakers not only for their contributions, all of which were powerful and excellent, but for the good work they have done in their constituencies to try to alleviate the problems and shine a torch on where things have gone wrong.
This is clearly a timely debate. As Members have touched on, the provision of accommodation services has a sorry history. The contracts were awarded in 2012, and as has been mentioned, the National Audit Office looked at the transition when it produced its report in January 2014. Already at that stage it flagged up the fact that the transition to the new contracts had been poor, that there was a lack of inspection by the incoming contractors of the accommodation that they would provide, and that the Home Office was failing to apply its key performance indicators.
That NAO report was followed pretty swiftly by the Public Accounts Committee’s report in April 2014. I remind hon. Members of the early warning that report gave:
“The transition to six new regional contracts to provide accommodation for destitute asylum seekers, and their operation during the first year, did not go well. Only one of the three contractors had past experience of managing asylum accommodation and overall performance has been patchy: there were delays at the outset and the Department and contractors have all incurred additional costs. The standard of the accommodation provided was often unacceptably poor and the providers failed to improve quality in a timely manner.”
The Scottish Refugee Council also carried out work in 2014.
Since then, and particularly in recent months, there has been example after example of the continuing problems. The issue of the red doors in Middlesbrough has been highlighted not only in the press but by my hon. Friends the Members for Middlesbrough (Andy McDonald) and for Stockton North (Alex Cunningham), who have spoken powerfully about it. When it was discussed on the Floor of the House, the Minister rightly accepted that the red doors were inappropriate and wrong, and that what happened should not have happened. He instigated a review, and it would be useful to have an update on that.
In the debate on the Floor of the House, I asked whether the case of the red doors was an isolated example or whether there would be others. Within a few weeks we had the example of the wristbands in Cardiff. That is a different part of the country and a different issue, but again, as soon as the torch was shone on that policy, it was declared by all to be inappropriate, wrong and something that should not have happened. In this debate we have heard powerful examples of other contracted provision that is inappropriate and wrong and that should not have happened. That seems to be the pattern: the flushing out of examples of the inappropriate, wrong use of contracts and then, after the event, a review. Can the Minister give us any assurance that those are the last examples of their type, or whether there are others in the pipeline? The concern when the red doors were first identified was that that was not an isolated example, which gives strength to the call for a proper review.
I suspect that there are further examples to come, and it may be that in the course of the Minister’s inquiry he has already uncovered examples that will need to be dealt with. There is now a short period until most of the contracts come up for renewal, so now is the time for a review to be carried out so that whatever mistakes were made in the past can be avoided in the future. I think some contracts will expire in 2017, with a possible two-year extension clause, so time is of the essence.
Last Thursday and Friday, I visited Wolverhampton, Dudley and Oldham. I want to touch on what I found in Oldham, where Serco runs the contract. More than 600 asylum seekers are being accommodated in a town that struggles economically and with the provision of public services. The more I dug down into why so many asylum seekers were being housed in Oldham, the more it became apparent that it was not because someone had assessed the provision of services and decided that Oldham was an appropriate place for asylum seekers, where their needs could be dealt with better than in other places. Nor was it because the local community thought that was the right way to approach accommodating asylum seekers.
I spent the whole day in Oldham, and in the end I came away with the conclusion that the only reason why more than 600 asylum seekers were there was that the unit price per head of accommodating them was lower there than anywhere else. That was the sole driver, without regard to the destitute, fleeing individuals who are in great need, as hon. Members have pointed out, or to the needs of the community. It was solely by reference to the unit price. That needs to be part of a much wider ranging review.
I will put on the table one further concern that has not been addressed, by mentioning the position of a young Syrian woman I met in Oldham. She was 26 years old. She was grateful that the Home Office had processed her claim within three months and given her refugee status, and I applaud that example of a woman in need being recognised and dealt with efficiently by the Home Office. As a result, she came off the support provided to her as an asylum seeker and lost her accommodation —that is a natural consequence of the support regime, and I accept that. She applied for accommodation in her new capacity as a recognised refugee and was told that she was not in priority need and that she would not be so unless and until she slept on the streets of Oldham. She relayed that to me face to face. She is a 26-year-old architect from Syria and the prospect of having to spend some time on the street in order to have priority support filled her with horror. As it happened—and as happens in many other areas—people providing voluntary support for asylum seekers stepped in. There may have been a glitch in the system or a misunderstanding of the rules, but I ask the Minister to look into not only that example but others in which individuals have been told they must spend a period without accommodation before they can move from one regime to the next.
I lend my support to the call for a review. There is now a window of opportunity. I suspect we shall hear further examples of the provision of wrong or inappropriate support, and that the Minister and others will say that it should not have happened. That means, I think, that it is time for a review of the contracts, and of support for asylum seekers in the round.
Immigration and Nationality (Fees) Order 2016
Keir Starmer Excerpts(8 years, 9 months ago)
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Keir Starmer (Holborn and St Pancras) (Lab)
Thank you, Ms Buck. It is a pleasure to serve with you in the chair. I indicate from the outset that we will not be opposing this order and we support the broad aim of making the border, immigration and citizenship system self-financing. It is right that the service is sustainably funded rather than being funded by the taxpayer. However, there are some issues on which we would like clarity from the Minister. The first of these relates to the introduction of premium-rate phone lines for visa applicants. Once the order is in force there will be a £2.50 a minute maximum charge for “the provision of advice, assistance or training in relation to functions in connection with immigration or nationality.” The Government have so far indicated that they intend to set the initial fee level at about £1 a minute, but the bracket is between £1 and £2.50 a minute.That seems questionable in principle, and I ask the Minister to provide more detail. In particular: is the premium-rate phone line for general inquiries about immigration status and visa applications or is it a special advice line? If it is not for general inquiries, will the Minister provide more detail about the circumstances in which it will be used?
I want to probe a particular example, and hopefully get some reassurance from the Minister. When the Immigration Bill was going through the Committee, attention was paid to the ability of landlords and employers to check the immigration status of those they might rent to or employ. Only this week, we saw the roll-out of the Immigration Act 2014 scheme for civil penalties for landlords who find themselves renting premises to people who do not have the right immigration status. The current Immigration Bill proposes to extend that provision by introducing a criminal penalty, and landlords are anxious about how that will work. So far, they have been reassured by the Home Office saying that it will be possible to carry out quick-and-easy checks on immigration status and that they therefore need not fear neither the introduction nor the extension of the scheme.
Is it anticipated that the premium-rate phone line will be the advice service for landlords? Will they be charged at the premium rate for carrying out their checks? That would be a major cause of concern for the Residential Landlords Association, which, I think, is under the impression that it will be either a free advice service or one with a limited charge, rather than £1, or even up to £2.50, a minute.
Anne McLaughlin (Glasgow North East) (SNP)
I wonder whether the hon. and learned Gentleman has experience, as I have, of constituents coming to surgeries saying that they are entitled to work here but that the Home Office is months behind with getting the paperwork sorted. The Home Office has then advised people to phone the not-yet-premium-rate line but their employers have said, “Look, I can’t be bothered. I don’t have the time”. Not only will the measure deter people who cannot be bothered because they have others they can employ; it will deter those who just do not want to pay the extortionate rate to make the call.
Keir Starmer
I am grateful for that intervention. It touches on an issue that we discussed in the Bill Committee, which is that for landlords and employers there is a risk, if checking immigration status is difficult and there is a penalty for getting it wrong—which, of course, there is—that they will default to a position where unless someone has a British passport and is white, they will not let them premises or employ them. That was not the first time that the concern was raised; it was brought up when the 2014 Immigration Bill was going through Parliament. All parties were concerned that there was a risk of indirect discrimination.
It is accepted that there is a risk. The Minister and the Home Office say that it is a manageable one, but one of the tools for managing the risk is the ability of landlords and employers quickly to get the advice they need. They say, unsurprisingly: “We are not experts in checking immigration status. There are many nationalities that will apply to rent a premises, or for a job, and we need to be able very swiftly to get an answer to any queries”.
Keir Starmer
I think that that was almost an instruction to give way, but I will in any event.
James Brokenshire
I would never dare to instruct the hon. and learned Gentleman in that manner. I can perhaps assist the Committee by explaining that the fees set out in the order relate to the overseas line. The landlords checking service is a different product, for which we have no intention of charging, and that applies also to the employers checking service.
Keir Starmer
I am glad to have that reassurance, which is in keeping with our debate in the Bill Committee, and I am sure that now it is on the record it will be clear for all to see. I am grateful for the Minister’s intervention.
I welcome the reduction in fees for dependent relatives of refugees. However, it is clear, going through the order, that the largest increases in 2016-17 are being imposed on those seeking British nationality or long-term residence, with many of those costs increasing by up to 25%. In contrast, the fees for those coming here on tier 2 skilled worker visas are being frozen or increased by 2%. It is right that we do not impose excessive costs on those coming here to do skilled work, but we must be careful to strike the right balance. The proposed fees under the order are higher than the 2015 maximums in more than a quarter of categories. Did something go wrong with the previous regime that required those changes under the order?
Secondly, when is the border, immigration and citizenship system expected to be self-financing, which is the aim? When do the Government plan to raise fees to achieve that? Thirdly, the order states that it will allow for increases over the next four years. Is the intention that, by the end of the four years, the likelihood is that the maximum fees will be charged? Fourthly, the impact assessment indicates that the planned increase in fees will cause application volumes to fall. Will the Minister provide more detail on the anticipated fall over the four years?
James Brokenshire
If the hon. Lady looks at the things I have said and the approach we have taken, for example on the growth routes—she highlighted the 2% increase in tier 2 and tier 4—she will see that it recognises the contribution made in those circumstances. Therefore, that is the approach we have taken to the fees that we would propose for 2016-17. It is important that we strike a good balance between the economic interests of the UK and the need to maintain a sound immigration system. We will seek to ensure that fees for immigration and nationality services enable the UK to retain its position as an attractive destination to work in, study in and visit.
Keir Starmer
The briefing from the Immigration Law Practitioners Association raised the point about ability to pay and gave an example that I have to say concerned me. The Minister may be able to give an answer now or in detail later, but the briefing quotes a figure of £936 to register a child as a British citizen where there is an entitlement to do so. I appreciate that the Minister may not have the detail on this, but I was struck by the fact that there is no provision for those who do not have the means to pay, yet if that relates, as in that example, to registering a child where there is an entitlement to do so, that would concern me. It may be that the Minister can reassure me on that point now or, if the answer is too detailed, perhaps in writing.
The Chair
Order. May I point out that interventions are drifting in the wrong direction?
James Brokenshire
We have considered the increases carefully in respect of what I have outlined when it comes to the growth routes—those we judge to be focused on contributing to our economic growth—and therefore the distinction that has been drawn is between those and certain other categories, where we judge there to be significant benefits that attach to the rights that are applied.
For example, we are looking to larger fee increases for what we consider to be the non-growth routes by up to 25%, which includes nationality and settlement fees. We believe these fees reflect the considerable benefits and entitlements available to successful applicants. That is the approach we have taken, certainly over the last couple of years, to relative fee increases. We judge that to be the appropriate stance to take, certainly in respect of the manner in which we are moving to self-funding for the border and immigration system, as I have outlined. Moving to 2019-20, we anticipate that the increases we intend to set out in the 2016-17 regulations will take us to around three-quarters self-funding for the costs of the borders, immigration and citizenship system, around £600 million of which is currently funded by the Exchequer. It is also important to underline that it is not simply about that side of the equation. There are rightly efficiencies that we need to continue to make to drive down costs and ensure that we have an efficient and effective service. Our expenditure is expected to reduce over the period before 2019-20 to get us to that self-funded position. We judge that that is the right thing to do, building on the important steps that that the Home Office has taken since 2010, when the coalition Government came into office.
About £3 billion of savings will have been delivered in 2015-16 as a consequence of this Government’s reforms, which were required to deal with the economic issues we had to face up to and to ensure that our public finances are on a much stronger footing. That has been the driver behind our work and it has delivered a much more efficient, effective, reliable service. That service has dealt with the issues, some of which have been described today, and decisions have been reached correctly and therefore have not been susceptible to appeal.
Keir Starmer
I will be short, Ms Buck. The question is about the registration of a child where there is an entitlement to do that but it costs £936, and the individuals cannot afford it. Is the answer that is tough?
James Brokenshire
As I have already said, fees will be set out in the negative regulations. There are already operable fees for citizenship and the other elements I have outlined. It is certainly not intended that there will be a specific nationality waiver and we will never require a fee when that would be incompatible with rights under the European convention on human rights. Clearly, there are costs to the immigration system in processing and assessing such claims and in the ability to assert rights, so it is right that we have a system that can recover those costs. I will certainly reflect on what the hon. and learned Gentleman has said and see whether there is anything further I wish to add once I have reread his comments. It is all about that relative balance.
On the question of a reduction in the number of applications, I would direct hon. Members to the regulatory impact assessment, which shows that there is no clear evidence that an increase in the fees would lead to such a reduction. Although certain assumptions are made in the impact assessment to underpin that, it makes it very clear that in practice such a reduction may not be seen and how, should there be a reduction, the amount of fees charged would cover the financial implication of that. We have increased charges for a number of routes over the past few years and yet, in many cases, the number of applications has gone up, notwithstanding those fee increases. There is no clear read-across in terms of what the economists would argue about price elasticity of demand being linked to the overall price of a visa.
I hope that the Committee will be minded to support the order.
Question put.
Asylum Seekers: Middlesbrough
Keir Starmer Excerpts(8 years, 10 months ago)
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James Brokenshire
I am grateful to my right hon. Friend for his comments. He has understanding and experience as a previous holder of the office I now hold as Immigration Minister. I can assure him of the urgency I have impressed on G4S in respect of resolving the issue quickly. The chief executive officer underlined that he recognised and understood that clearly. We will be monitoring the situation closely. I have asked officials to go to Middlesbrough tomorrow to assess the situation on the ground and to start work on the audit. I hope that that reassures my right hon. Friend of the urgency that I, my officials, and, from what we are hearing, G4S attach to this matter.
Keir Starmer (Holborn and St Pancras) (Lab)
Today’s report in The Times is obviously deeply concerning, and I recognise the Minister’s concern and the steps he has taken to get to the bottom of it. It is concerning that such a thing has happened. It is early days but it seems right—it does not seem that the facts are disputed—that the doors were painted red. It is also concerning because of the underpinning arrangements. How did this come about, and how did nobody think it inappropriate for the doors to be so painted, particularly given that, as the Minister has outlined, there is a Home Office inspection regime and a local authority assurance scheme? How did nobody, under those arrangements, think there was anything wrong? There is also concern about the consequences. Hate crime is increasing—it increased by 18% last year—and the consequence has been hate crime in Middlesbrough. That is concerning in its own right. I echo the view that the sooner something is done to rectify the situation, the better. There is also concern that this matter is before the House only because of the careful work of Andrew Norfolk at The Times, not because some internal inspection or auditing scheme flagged it up as a matter of concern.
The Minister has told us when he first knew, and I appreciate he has put steps in place to make further welcome inquiries, but how did this escape whatever inspection or assurance regime was in place? Were the properties inspected or assured by the Home Office or anybody else? If not, what can be done to improve the regime? What conversations has the Minister had with the contractors in Middlesbrough? Is this an isolated example? Is it something that has happened just in Middlesbrough, or are there examples in other parts of the country? Have inquiries been made into that? If so, what have they shown so far? If not, can such inquiries be made? What further conversations can be had with all private providers of accommodation to ensure that this does not occur again anywhere and that, if it has occurred anywhere else, it is rectified as soon as possible?
James Brokenshire
As I highlighted, I spoke to the chief executive of G4S this morning and asked that work be done to assess whether this is an isolated issue. I have asked how we can talk to all the providers under the COMPASS contract and how inquiries can be made with their subcontractors as well. From initial investigations, it seems that some providers of social housing might, for maintenance purposes, paint in a particular colour. We are investigating that further. Jomast made the point that about 20% of its property portfolio is asylum accommodation. We will focus on this issue as part of the audit work I have commissioned, and we will see whether lessons can be learned about the ongoing maintenance assessment. Inspections are undertaken to identify whether accommodation remains suitable or whether steps need to be taken by our contractors. I have tasked out that work as part of the examination. I underline again that we take hate crime very seriously and will remain focused on it in our forthcoming work.
The hon. and learned Gentleman asked about inspections. We will look at the processes and procedures to establish why the significance of this issue was not identified earlier. I have noted reports in the press and elsewhere of the issue having been highlighted to G4S and potentially to others. We are seeking to get to the bottom of that.