Investigatory Powers Bill

Kevin Foster Excerpts

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Wendy Morton (Aldridge-Brownhills) (Con)]

It is a privilege to speak on the second day of consideration of this very important Bill and to follow hon. and right hon. Friends and colleagues, as well as the many learned friends and colleagues—[Interruption.] I did not quite expect to hear that noise from the skies during my opening comments; I do not normally have this sort of impact.

I do not wish to disappoint people, but unlike my hon. Friend the Member for North Dorset (Simon Hoare) I sought neither inspiration nor cake from Kipling. Instead, I turned to the American scientist and author Neil deGrasse Tyson, who wrote very perceptively:

“Any time scientists disagree, it's because we have insufficient data. Then we can agree on what kind of data to get; we get the data; and the data solves the problem. Either I’m right, or you’re right, or we’re both wrong. And we move on. That kind of conflict resolution does not exist in politics or religion.”

Very wise words, I think.

I believe that the advantage scientists have over the rest of us who base our judgments on instinct or hope should also be available to the people who keep us safe, our security personnel and the agencies in which they so importantly serve. I appreciate the sensitivities and difficulties with this topic of bulk powers, but I feel that the Bill has had a lot of scrutiny. It has been a long time in gestation, and rightly so.

Our security services need data, the raw information—perhaps from dozens of sources. They need the hundreds, perhaps thousands of pieces with which to build a picture of the threats that face us, and they then have the knowledge to take the right action against them. In today’s world in which data are all around us, our security personnel need to be able to collect them and to have the right, with safeguards, of course, to pull them all together.

There was a good deal of discussion on Second Reading, in Committee and now on Report on the nature of bulk powers and bulk review. It saddens me that a notion seems to have developed among some that the security services, given the chance, will use new powers to hoover up all the information on us all without any control at all. I think that that perception is false. Why? As we have been told, the bulk powers referred to in this Bill are already provided for in existing legislation. The Bill brings them together and, importantly, makes them subject to robust statutory safeguards.

[Kevin Foster (Torbay) (Con)]

My hon. Friend is making an excellent speech. Does she agree that, as mentioned by the hon. and learned Member for Holborn and St Pancras (Keir Starmer), having one Bill that brings consistent tests to this area and to the use of this power makes eminent sense and that that is why it should be supported?

[Wendy Morton]

I am grateful to my hon. Friend for his helpful intervention. He is absolutely right; it makes sense to bring these powers together and, while doing that, to consider the safeguards.

Yes, the Bill provides our security and intelligence agencies with the ability to obtain data in bulk in order to identify new threats and to learn more about existing threats, but I feel that it does not confer on them new and sweeping powers. Our intelligence agencies have bulk collection powers but they do not conduct analysis of the data in an indiscriminate manner without reasonable suspicion—it would not be lawful for them to do so. In the modern world these powers, which already exist, are crucial. Bulk capabilities are crucial.

To investigate a target, our agents need to be able to acquire its communications in the first place. When a target is overseas, bulk interception is one of the key means, and may be the only means, by which we can obtain communications that would otherwise not be available. This is especially so if that potential threat is operating in an area where we have no strong diplomatic link or where the governing authority is not in control of all its own territory. We know from yesterday’s debate that bulk powers and their use have been instrumental in keeping us safe from threats abroad and, indeed, at home. It is worth noting that the bulk powers in the Bill have already played a significant part in every major counter-terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since November 2014. They have been essential in identifying 95% of the cyber-attacks on people and businesses in the UK discovered by the security and intelligence agencies over six months. Here at home the existing powers have been used to identify serious criminals who were seeking to evade detection online and could not be pursued by conventional means, supporting the disruption of more than 50 paedophiles in the UK in the past three years.

I would like to quote the words of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who is no longer in his place but who has been contributing to today’s debate. He is a former Attorney General and not, if I may say so, a man who lightly allows liberties to be chipped away. He said of the Bill:

“The present Committee and its predecessor are satisfied that the Government are justified in coming to Parliament to seek in broad terms the powers that the Bill contains. None of the categories of powers in the Bill—including the principle of having powers of bulk collection of data, which has given rise to controversy in recent years—is unnecessary or disproportionate to what we need to protect ourselves.”—[Official Report, 15 March 2016; Vol. 607, c. 836.]

Of course, some will disagree with the former Attorney General and they rightly have the opportunity to do so, but I happen to agree with him on those points.

Finally, I want to touch on calls from Labour and the SNP on Second Reading and in the Public Bill Committee for independent validation of the operational case. We should recognise that the Government have listened and, in response to those calls, have confirmed that David Anderson QC will undertake a review to inform the passage of the Bill through the House of Lords. Parliament will then be able to decide.

I will support this Bill as one that codifies the law as much as it extends it, and that builds robust safeguards against intrusion while at the same time safeguarding the public. I believe that it is an extremely important Bill—important to our country, important to the people of our country, and important to our constituents.

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[Stephen Hammond (Wimbledon) (Con)]

Like yesterday, I want to make my usual declaration that I am not a lawyer. It is always dangerous to follow lawyers, particularly the excellent contribution of my hon. Friend the Member for Fareham (Suella Fernandes).

The amendments are clear, and I approach them from the same point of view of economic cybercrime and the importance of bulk data which I took in my comments on Second Reading and yesterday.

Understandably, the hon. and learned Member for Edinburgh South West (Joanna Cherry) raised concerns. I understand the resolve of her and her party on the central point about potentially using less targeted and less intrusive means, rather than bulk data. However, the Minister rightly made the point that there is a review, and he mentioned not only the necessity of the review, but that it would look at the necessity of these powers. If we consider the bulk powers in relation to economic cybercrime, their necessity becomes increasingly clear.

Over the past few years, our economy has been transformed by advances in technology, backed by encryption, with huge changes in how business is conducted. E-commerce is a reality not for the few but for the many. Given the parcels that arrive on my doorstep from my daughter every day, it is a huge thing that has reached everybody. More than that, there are new business opportunities for the growing IT sector. The use of big data, which my hon. Friend the Member for Fareham discussed in an historical context, is becoming increasingly evident in the context of the internet economy in looking at patterns of behaviour to determine new product design and identify new customer opportunities.

Equally, those opportunities are extended to economic cyber-criminals and terrorists. My hon. Friend the Member for Aldridge-Brownhills (Wendy Morton) spoke about 95 cyber-attacks that have been identified through the use of bulk data. To choose one specific example, Apple has publicly accepted that the existing bulk data powers detected a vulnerability in its operating systems that, had it been exploited, would have affected the modification of the software being used on iPads and iPhones. It might have been used for all sorts of purposes, but one purpose could well have been the removal of data about bank accounts and other personal data. In the open world that we see at the moment, there are myriad threats, particularly in the dark web through password-protected information. Much of what happens is valid. The existence of encryption and anonymity protocols is a huge benefit to people, but criminals and terrorists have embraced this dark world as well. The power to acquire and analyse bulk data is therefore essential. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) said that we have to trust our security services. Those who have some experience have very clearly made the case that we should look at the whole issue of the existence of data harvesting.

I believe that the bulk data powers are essential because they allow for intelligence-gathering on overseas subjects of interest. They identify the “needle in the haystack” threats that my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) talked about by identifying small displaced fragments of information, establishing the investigation of links between subjects of interest, understanding patterns of behaviour and communication methods, and looking at pieces of information that are acquired through new and varying sources. Bulk interception focuses on foreign intelligence. Criminality and terrorism is international, and it is therefore only right that we should have access to the data so that we can detect aspects of that criminality. The importance of bulk data acquisition is clear. Detailed and directed searches of bulk data communications can establish the fact that there is communications content between subjects of interest and reveal where attacks are planned. Bulk acquisition can help to direct where a warrant for more individual targeted data, such as interception, is essential and complementary. It also allows for searches of traces of activity where previously unknown suspects may be taking part in patterns of behaviour that are well known but not yet identified.

The Bill codifies and pulls together the powers that are already in place and puts in place some consistent safeguards. As my right hon. and learned Friend the Member for Beaconsfield said, none of these powers is unnecessary or disproportionate. Through the safeguards that they are putting in place in their amendments, the Government will ensure the review of valid lines of operation by Mr David Anderson. More importantly, a number of cases will involve not just the Secretary of State but the judicial commissioner—the double lock that several Members have spoken about. In terms of the content acquired under the warrant that was initially going to look out for people internationally, if those data then pertain to people in the UK, another, more targeted examination warrant is needed. That is another protection and additional safeguard that was not there before. The statutory code of practice that is being put in place secures the safeguards that we need.

Particularly with regard to economic cybercrime, I hope that when the House considers the amendments on bulk data powers proposed by the SNP, it will conclude that Mr Anderson’s review is appropriate. Many Government Members are making an overwhelming case that these powers are necessary. I hope that the vast majority of colleagues will join us in rejecting the amendments.

[Kevin Foster]

It is a pleasure to speak in this debate. On Second Reading, I said that much of this can be dealt with in two ways: first, by making quite a sensationalist argument; and secondly, by looking at what is actually being proposed. Many of these powers, particularly on bulk data, are already being used, but they are now being avowed, put into legislation, and given a consistent framework. The legislation that already regulates much of this activity is from an era well before smartphones and the idea that a phone could do anything other than take a phone call. This Bill provides a much more modern piece of legislation, subject to clear safeguards.

While I appreciate the sentiments expressed by the hon. Member for Fermanagh and South Tyrone (Tom Elliott), I would always be tentative about using the argument, “If you have nothing to hide, you should have nothing to worry about.” I understand his point of view, certainly in terms of the bulk data powers, but we should always be rather careful about that being an argument for absolutely anyone being under surveillance at any time. That is not what is proposed in this Bill or these powers, given that there would need to be a warrant concerning how information is gathered.

It has been a pleasure to sit through the debate this afternoon, which has convinced me that the amendments are not justified and should be opposed. The speech given by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) was thoughtful. He adopted a responsible position, as a member of the Opposition, in teasing out some of the legitimate concerns about the Bill and making some genuine progress in getting reassurances from the Minister. It was encouraging to see that level of exchange on things that genuinely cause some concern.

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[Anne McLaughlin]

If the review shows that the bulk powers are not necessary, as the reviews in the USA showed, would the hon. Gentleman expect the powers to be taken out of the Bill?

[Kevin Foster]

I thank the hon. Lady for that helpful and interesting intervention. First of all, I would not want to prejudge the review. In addition, if the review came back to us and said that these powers were absolutely right, and that they were vital for national security, I hope that we could look forward to the SNP’s immediate and wholehearted support. I have a funny feeling that we might not, however.

Let us not prejudge the review. As the Front-Bench spokesmen touched on in their exchange at the Dispatch Box, it is highly unlikely that if the review stated that something specific was not needed, such a measure would be proceeded with. How do we know what an independent review will come back with? If I knew, and I stood here and said so, the next accusation would be that the review was not independent because we already knew what it would come out with. That point does not support making the amendments, which remove these powers completely.

I have been satisfied by the changes that have been made throughout the process, as the Bill has come out of Committee into Report. Judicial safeguards have been strengthened, and there is now a stronger and more consistent judicial test for review of these warrants. Powers have been increased, as have the offences that apply if someone misuses data. The Government are striking the right balance between what we need in order to get hold of data that could keep our country safe, and the legitimate expectation of privacy. If data have been collected that are of no use, they can be removed and they will not be used for purposes beyond the original basis of the warrant.

Ultimately, in any unjustified use of a warrant, the Secretary of State remains answerable to this Parliament. If, for example, someone decided for some unknown reason that it would make sense to go into detail about political or trade union affiliation, they would be answerable to this House, and a Secretary of State would be most unlikely to survive that.

[Joanna Cherry]

Does the hon. Gentleman agree that the Secretary of State would be answerable to the House only if such activity came to light? It might not come to light.

[Kevin Foster]

I take on board the point that the hon. and learned Lady makes. However, as my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) mentioned, the Intelligence and Security Committee would almost certainly oversee what was happening. As was touched on with the Minister, although the Committee is not involved in live intelligence work, it carries out reviews and, as discussed in relation to one of the probing amendments tabled by my right hon. and learned Friend, there is an understanding of an exchange of information. I think it is highly likely that such activity would come to light eventually. Clearly, a Secretary of State who had sanctioned that would know that, bluntly, their job was over.

The powers in the Bill are proportionate to their aims. They have appropriate safeguards, and more work will be done following the review. It is wrong to prejudge an independent review by constantly asking, “What happens if they say no?” To put it the other way around, what happens if they say yes? I do not think that the amendments are right at this stage. It is appropriate to retain these parts of the Bill, and that is certainly what I will vote to do.

[Lucy Frazer]

I am honoured to take part in this debate, as I was to serve on the Bill Committee. I waited with much anticipation to hear my hon. Friend the Member for North Dorset (Simon Hoare) quote Rudyard Kipling, but I am not sure that the quote was forthcoming. At first, I thought he might say, as Kipling did:

“A woman’s guess is much more accurate than a man’s certainty.”

On reflection, I thought perhaps he would say that,

“words are…the most powerful drug used by mankind.”

That would have been an apt quote in the context of the Bill, because communication can be revolutionary. We saw that with printing. Printing established the first mass medium for transmitting information, and some historians said that it played a role in the unrest that characterised the devastating thirty years war. They say that because although the doctrines set out by Luther in the 16th century were formulated two centuries earlier, they did not spread until the printing revolution.

We are now in the midst of a technological revolution. It has never been easier for terrorists to spread hatred and devastation across continents and recruit others to do so. Our security services need the tools to keep up with the technological developments.

I will deal with two matters: first, the background to the bulk powers and the reasons we need them; and secondly, the safeguards that exist in the Bill in respect of bulk powers.

The threats that we face are real. MI5 has said that the number of terrorism offences has risen by 35% since 2010. David Anderson, the independent reviewer of terrorism legislation, has said that at the time of his report, MI5 explained to him that it had

“disrupted two…plots by lone actors in the past nine months”.

It explained to him that,

“identifying such individuals is increasingly challenging, exacerbated by the current limitations in their technical capabilities”.

David Anderson was saying the same thing as the director of Europol, who in evidence to the Home Affairs Committee in January 2015 said:

“Given that a majority of those communications run by these networks are moving online, there is a security gap there.”

He thinks that that is

“one of the most pressing problems that police face across Europe.”

The bulk powers are an important part of our toolkit. The Home Office has said that the bulk capability has

“played a significant part in every major counter terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since…2014”.

There are safeguards in the Bill. I have counted at least seven in relation to bulk interception. Bulk interception relates only to overseas communications; it needs to be activated in the interests of national security, in cases of serious crime or in the interests of the economic wellbeing of the UK; a warrant can be issued only by the Secretary of State; it can be issued only if the action is necessary and proportionate; the action of the Secretary of State is reviewed by a judge; there are restrictions on copying, disseminating and retaining the material that is collected; and there is a panoply of offences for cases of misuse.

During the Bill’s passage we have heard about additional safeguards. The Home Secretary has committed to providing a further operational case for bulk powers. We saw yesterday, with the passing of new clause 5, that the decision on whether a bulk power is allowed will be subject to the additional safeguard of a test of whether the result could be achieved by less intrusive means.

Like printing, the internet is improving our ability to communicate. We need to give our security forces the means to keep pace with these developments, because a country that cannot protect its citizens provides no freedom at all.