Investigatory Powers

Lord Brown of Eaton-under-Heywood Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I hesitated before putting my name down for this debate. Nine long years have passed since I was appointed the Intelligence Services Commissioner under RIPA, having acted before that as president of the successive tribunals that were set up to deal with complaints into the various intelligence agencies. I recognise that my experience is, therefore, already to be regarded as perhaps somewhat out of date. This is a fast-moving field, as has already been remarked. However, I want to say a word or two about one of the more substantial divisions of opinion between the two main reports that we are considering in this debate: namely, whether it is Ministers or judges who should be authorising invasions of privacy as provided for under the legislation.

First, however, I shall allow myself a broad reflection. I wonder whether any other noble Lords watched, as I did, on Sunday night, the truly heart-rending play on BBC 1, with Emily Watson playing the mother of a beloved 24 year-old daughter, Jenny Nicholson, who was massacred 10 years ago in the 7/7 Tube bombings. Frankly, nothing could more tellingly have brought to life the absolute imperative of Government doing all in their power to secure public safety.

Of course, there is always a balance to be struck between that imperative—the importance of ensuring that our intelligence agencies have all the powers they need in their never-ending struggle to protect us—and the need also to guard against excessive invasions of privacy. It is a balance required to be struck by reference to three critical touchstones that are provided for in the legislation: necessity, reasonableness and proportionality. However, in striking that balance, and before rejecting a particular application as unnecessary, unreasonable or disproportionate, surely it is appropriate to bear in mind the contrast between, on the one hand, the catastrophic consequences of a terrorist outrage such as 7/7, with the gross violations of people’s human rights that that occasions, and, on the other hand, the relative harmlessness of a privacy intrusion, even if later it might come to appear unjustified.

I speak of the relative harmlessness of an invasion of privacy because, in truth, that is how I see it. Had one lived in parts of eastern Europe with a Stasi-like security service in operation, I acknowledge that one might have seen it differently and in a rather more jaded or jaundiced light. Indeed, Mr Anderson recognised as much on pages 31 and 32 of his comprehensive and hugely impressive report, where he reflected on the marked differences of opinion between our own courts and the Strasbourg court on a number of privacy issues. He instances cases such as those on the retention of DNA samples—on that, I profoundly agree with the view expressed by the right reverend Prelate—and on stop-and-search powers, both of which I touched on in last week’s debate on human rights. For my part, I continue to believe that it is better to allow the occasional questionably justifiable invasion of privacy than to risk losing the chance of avoiding the next terrorist outrage.

I turn now to the question of who—Ministers or judges—should be responsible for before-the-event authorisations of privacy invasions. Let me make it clear at once that I am expressing my views specifically in relation to those invasions of privacy which are applied for by the three main intelligence agencies: MI5, SIS and GCHQ. I have direct experience of those. I say nothing about what are presumably the vast majority of warrants sought for what I think can fairly be called more routine law-enforcement purposes, of which I have no particular experience.

When, earlier this year, we debated the Counter-Terrorism and Security Bill, I unsuccessfully moved an amendment in connection with the proposed toughening-up of the TPIM regime to include what had originally been in the control order regime: provision for internal relocation—internal exile, as it came to be called. I advocated transferring from the Home Secretary to the High Court the primary responsibility for deciding on the facts whether the suspect in question had indeed been engaged in terrorist activity. That followed a clear recommendation by Mr David Anderson QC. However, the amendment was defeated on the basis that it should be for the Secretary of State and not the courts to assess all such matters in any context involving national security. I still happen to think that it was a pity in the case of TPIMs, but I take a very different view in the present context. Orders involving a suspect’s forced internal exile are, I would suggest, hugely more disruptive of people’s lives than what would result from any of the warranted intrusions and interferences with privacy which are under consideration in today’s debate.

I believe that warrants and other such authorisations which are sought by the security services for privacy invasions in the national interest for security, defence and foreign policy reasons should all continue to be decided by Ministers, and that judicial commissioners—let me say at once that I am entirely relaxed about the proposed merger of the various commissioners into a single composite body of retired senior judges—should continue, as in the past, to subject such authorisations to periodic retrospective judicial scrutiny; in other words, the judges’ role should continue to be confined to after-the-event review.

It was always my experience that the Secretaries of State and their dedicated warrantry units were acutely alive to the fact that their processes and at least a proportion of their decisions would be tested in detail and challenged in the course of such reviews. I always found those concerned to be frank and conscientious in their assessment of the various considerations in play. The present Intelligence Services Commissioner, Sir Mark Waller, in his annual report published just a fortnight ago, records at page 24 that he was impressed by the dedication and high ethical principles of all those working for the agencies, and that emphatically was my own experience too.

I take the opposite view from that expressed by the noble Lord, Lord Strasburger, on the need for a judicial warranty to avoid the issue, so it is suggested, of excessive numbers of unlawful warrants by the Secretaries of State. Rather, it seems to me preferable that a Minister should decide these applications, appreciating that he has to reach a defensible conclusion, than that, following the proposed change in the law, he should be tempted to say, “Well, a judge will decide this. Who knows, he may well grant it. It is certainly worth running the case before him”. I suggest that that could lead to less well-targeted warrantry than at present.

All questions of national security and the vital interests of the state should be for Ministers in the first place. Of course the process must be rigorously invigilated. That would continue to be achieved by strict after-the-event scrutiny on judicial review principles. In these sorts of cases there will often be room for two views. Questions of necessity, reasonableness and proportionality do not invariably admit of absolutely plain and categorical answers. The Home Secretary may well have wider perspectives than a judge, whether of the security dangers sought to be avoided, or indeed the possible political fallout from granting or refusing authorisations. The noble Baroness, Lady Manningham-Buller, touched on that aspect.

Commissioners should condemn an authorised intrusion of privacy in retrospect only if the case for it can fairly be said to have been clearly insupportable. In short, on this issue, I prefer the conclusions in the ISC report, but let me add that that does not detract from my profound admiration for the great bulk of Mr David Anderson’s work. He has served the nation well.