Investigatory Powers

Lord Blencathra Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord Blencathra (Con)]

My Lords, the last time that the noble Baroness, Lady Jones of Moulsecoomb, and I discussed this matter we were in complete agreement, which was rather frightening to us both. I listened carefully to what the noble Baroness had to say and today I am only about 25% in agreement with her, which she will probably be relieved about as well.

I give a warm welcome to the Anderson report for two reasons. First, I believe that he has the recipe here for agreement by all sides. He has rejected adding more ingredients to the old RIPA stew and come up with a new recipe which can be palatable to those in the security services and police who want more powers; to the Home Office, which wants to grant those powers; to the groups who are concerned about the invasion of privacy; and to we parliamentarians who want the powers—whatever they may be—to be clearly spelt out and granted by Parliament. The Anderson report does that.

The second reason why I like the report is that it entirely supports the report and conclusions of the Joint Committee on the original snoopers’ charter Bill, which I was privileged to chair. I thank my noble friend the Minister for his typically overgenerous remarks about me as its chairman. I was just the chairman; the real work and thinking behind it were done by the excellent members of the committee from both Houses—from the Labour Party, the Conservative Party and the Liberal Democrats, along with that venerable Cross-Bencher, the wonderful noble Lord, Lord Armstrong of Ilminster, who was not economical with the truth in giving us advice.

I have always felt that some of my noble friends thought that I was a bit offside in not backing the draft Bill and that my behaviour, as a former Conservative Home Office Minister, had let down the forces of law and order. However, my committee rubbished the draft Bill for one reason only: it was rubbish. I am glad that its flawed clauses were not added to the Counter-Terrorism and Security Bill in the last Session by my noble friend Lord King, as it tried to add unacceptably wide catch-all clauses to an out-of-date RIPA. To be fair, the Home Office civil servants, whom I rate immensely, quickly caught on that the draft Bill was wrong and worked quickly to redraft it, so I am afraid I disagree with my noble friend Lord Strasburger—I think there was a sea change in attitude in the Home Office.

However, that draft did not find political favour in the coalition and did not make progress. Instead, we had the Anderson study. I have gone through the report, A Question of Trust, carefully and cannot find a single instance where he has disagreed with the findings of our Joint Select Committee. Indeed, his recommendations exactly match ours. I am not being arrogant and claiming he was guided by us—of course not—but he examined all the issues in detail, as we did, and came to the same conclusions. Of course, we did not deal with interception warnings as those were not in our remit, but I suspect that, if they had been, we might have come to the same conclusions.

What are the key points? Anderson rightly sets out the principles in chapter 13. Difficult though it will be, they will have to be translated into legislation as part of the Bill. It is difficult for UK Acts of Parliament to do this, as opposed to EU law or United Nations conventions, which can prefix the regulations with a million “Whereases”—“Whereas this”, “Whereas that” and “Whereas the other”. But if we want public and parliamentary acceptability, we have to balance the granting of exceptional powers with enshrined rights to privacy in a transparent system.

I warmly welcome recommendations 1 to 12, which call for a completely new and comprehensive RIPA, covering all aspects of communications and written in simple language. It has to set out clearly what powers we are granting the security services and key law enforcement agencies. That can be done without revealing operational techniques, and it is no excuse to say that the law has to be obscure in order to prevent the bad guys knowing what we are doing.

Recommendation 12 is particularly important. It is vital that we have revised definitions of communications data and their subdivisions into traffic data, use data and subscriber data. The contents of some of these categories, especially subscriber data, have changed dramatically since 2000, and so have attitudes to privacy. Young people—and some noble Lords—seem content to put enormous amounts of information about themselves on Facebook and have a more relaxed attitude to invasion of privacy than some of our generation. That is why we need to engage, as recommendation 12 says, with “all interested parties” to attempt to rank, in order of the extent to which privacy is invaded, the information which law enforcement agencies want and the different regimes they would need to comply with in order to get it.

I can give the House the two easy examples for a start. At the bottom end of the privacy scale is the name of the subscriber, and at the top end are the subscriber’s emails. All the stuff in between—the bank account numbers, the location of calls, the websites visited and dozens of other bits of information—needs to be classified into categories, each requiring various conditions to be satisfied before it can be accessed.

I welcome David Anderson’s support, in recommendations 15 to 18, for the Joint Committee’s recommendation on web logs and his call for a discussion with all parties on how to resolve this issue, which is the most difficult we will have to deal with in this legislation. It was the issue which most exercised the Joint Committee and upon which we found it very difficult to agree. The law enforcement authorities and the Home Office say that it is vital; privacy campaigners say there is a great breach of privacy. After much discussion and thought, our committee unanimously concluded that this matter has to be set out clearly in the Bill and both Houses given a chance to vote on it. Provided that the Home Office builds on the other safeguards proposed by Anderson, I will back the collection of web logs, and I think that the measure will get through Parliament as well. However, it will not get through if there is an attempt to sneak it in through some obscure drafting.

Recommendations 24 and 25 on extraterritorial effect are also important, and David Anderson has homed in on the mutual legal assistance treaty—MLAT to its friends. Our Joint Committee liked MLAT as a principle but the Home Office said that it was far too slow. We said that a new treaty should be negotiated “forthwith.” We said,

“the Government should take advantage of the special relationship with the United States to ensure that bilateral arrangements with them are expedited”.

At this point, I will jump to judicial warranting because it is relevant to a point I want to make about MLAT. Mr Anderson recommended replacing the Home Secretary’s warrants with judicial ones. The judges—with all due respect to noble and learned judges—will be no better or worse than the Home Secretary. The submissions will still be drafted by the same highly qualified civil servants, based on the same evidence. On some rare occasions, the decision by the Home Secretary or the judges will be wrong and an incident may occur. That is an inevitable consequence of decisions made by human beings trying to guess the motivations of other human beings. As has been often said, the security services have to be lucky all the time; the terrorists have to be lucky only once. I now support judicial warranting for interception except for those rare cases that may involve national security and the agents of foreign powers. Some have said that the Home Secretary will be blamed if judges make the decision and an incident occurs. I disagree; that is nonsense. Not even our nastiest press or bloggers will get away with trying to blame the Home Secretary for a decision made by independent judges.

While I see no extra insight resulting from judges doing warranting, there are two major advantages. First, it gives a flavour of impartiality to the process and will be seen as a counterbalance to giving the security services and police the extra powers they want. This is quite different from the SPOC process, which we do not want magistrates anywhere near. Secondly—this shows the relevance to extra-territorial jurisdiction—American CSPs are familiar with judicial warrants and will happily hand over information to the FBI and CIA if a judge issues a warrant. However, they do not like handing over information because a British politician asked for it. That is where the noble Lord, Lord Scriven, and the noble Baroness, Lady Neville-Jones, are absolutely right. This is the pattern in the rest of the world and it is the case with our major ally, the United States, where most of the information is stored. Therefore, coming back to ordinary investigatory powers, we should extend judicial warranting for interception purposes for all requests, however minor, to the USA CSPs. In those cases, our judges should merely rubber-stamp the requests and route them through a newly negotiated MLAT that must take no more than five days, rather than five months, as at present.

There is something else we must do with the United States—stand up to them. Imagine if we had a giant United Kingdom company—a British Apple or Google—that stored vast quantities of information on US citizens. Imagine if the FBI or CIA asked this Brit company for information and it said, “Oh, sorry, can’t do that—need a warrant, you know. You need X, Y and Z and it will take six months”. What would happen? The Americans would round up every Brit in the States, issue international arrest warrants for every other Brit connected to the company and they would get 20 life sentences each. We have seen the Americans impose their Lex Americana on the world and we must do likewise if—a big if—we decide that Google or Apple holds information in California that we must have here. We should also serve the warrant for information on their UK-based executives and have the same sort of penalties for lack of co-operation. We may even very privately tell the USA that the feed they get from GCHQ is not guaranteed or that MUSCULAR will be down for a few weeks for essential maintenance. They play hard ball—whatever that is—with us and we should have the guts to do likewise. I know that my noble friend the Minister cannot even acknowledge those points without the risk of special rendition and waking up in Diego Garcia tomorrow morning, but we must think of playing by American rules if we are in the same game as them.

I have a few final points. The SPOC system works. Our Joint Committee probably started with the prejudice that it was incestuous and not rigorous, with one friendly policeman sitting beside another and rubber-stamping it. We assumed that magistrates would be a better choice. We were surprised to find we were utterly wrong. As operated by the Metropolitan Police, the SPOC system is absolutely first class. The same goes for the other big users which can allocate highly trained specialists to do nothing other than SPOC work. Indeed, we think that all smaller police forces should combine their operations into regional units or let the Met and other big forces competitively bid to do it. This is an example of where being big is good; the more cases they handle, the more professional they are.

The SPOC regimes operated by the other big players, the United Kingdom border agency—or whatever it is called this week—HMRC and the security services are also impeccable. All other smaller non-police users must be compelled to go through a professional process, such as the national anti-fraud network, rather than trying to do their own thing.

There is one issue which Mr Anderson has not picked up, and that is the ability rapidly to amend the law for new technological advances. Some may say that a new RIPA should be future-proof and encompass everything. I say no, absolutely not, not unless it is so widely written that it would lack transparency, like Clause 1 of the original flawed Bill. Our Joint Committee recommended—and I recommend it here—the creation of a new technical sub-committee working under the new ISIC. I should point out that our Joint Select Committee report said:

“Consideration should be given to a new unified Surveillance Commission reporting to parliament with multi-skilled investigators and human rights and computer experts.”

So thank you, Mr Anderson. We are again not just on the same page but are singing the same tune.

The ISIC role, as defined by Mr Anderson, does not focus on emerging technology. We need a sub-committee which can act quickly and recommend to ISIC that a new process, software or gizmo needs to be added to the Act. Then ISIC would recommend to the Home Secretary that an urgent amendment should be made. Then we need the second part of the solution: fast parliamentary approval using the parliamentary super-affirmative procedure, which exists, but is hardly used, and which we recommended in our report.

Finally, we really have to dump all the other hundreds of authorities which can access, even in a limited way, investigatory powers legislation. The Home Secretary rightly says that we need it to catch terrorists, paedophiles and serious criminals. The public will buy into that, but not when they hear that Slough council used it to catch people selling fake trainers or Cambridgeshire County Council used it to catch fraudsters, which is in the Anderson report. We all know that these ancillary organisations have only very limited access to subscriber data, but it prejudices the public against communications data per se. If the crimes are so serious, as in the case studies quoted by Anderson, why in the name of goodness is trading standards dealing with them? They should have been handed over to the police or the National Crime Agency to prosecute. We cannot have vital powers required by the police, security and state agencies tainted because far less important agencies are in the loop as well.

I look forward to seeing the new draft communications data Bill. We need to see it quickly and to pursue it in draft form quickly. Then we can move forward to a proper Bill. If it adopts the recommendations of Mr Anderson and the Joint Committee then it can never be called a snoopers’ charter and it will deserve parliamentary approval.