Investigatory Powers

Lord Butler of Brockwell Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord Butler of Brockwell (CB)]

My Lords, much of the attention in this afternoon’s debate has rightly focused on the Anderson report, but I shall start by paying tribute to the other members of the Intelligence and Security Committee, on which I had the privilege of serving as one of the two representatives of your Lordships’ House. That committee was excellently chaired by Sir Malcolm Rifkind. It was not only a very harmonious and stimulating committee but Sir Malcolm devoted himself to it with great application and energy and did a huge amount to promote better understanding of the issues we are discussing today, not least by holding public hearings of evidence for the first time.

The Anderson report and the ISC report, together with the RUSI report, which we expect in the next week or two, and the report of the commissioners and the Joint Committee chaired by the noble Lord, Lord Blencathra, provide a valuable basis, which should be sufficient, for the very important decisions the Government will have to make about intelligence legislation, which will be a major feature of Parliament’s work in this Session. If I may reciprocate the very kind compliment from the noble Lord, Lord Bates, we are very fortunate to have him as the Minister who will guide the House through this legislation.

We have to recognise that the intelligence agencies and the Government face a difficult dilemma in preparing this legislation. On the one hand, modern technology gives extraordinary opportunities for intrusion on citizens’ lives. Those who challenge the users of that technology to justify their use of it for intrusion are, in my view, right to do so. The essence of freedom is the right to challenge authority, all the more so when the instruments of oppression in George Orwell’s Nineteen Eighty-Four are now with us today. On the other hand, the effectiveness of the intelligence agencies depends to a large extent on the enemies of the state not knowing what the agencies can do and, equally importantly, what they cannot do. Herein lies the dilemma. If the intelligence agencies demonstrate how they have used intelligence to protect us from attacks, they risk alerting attackers to how to reduce the risk of detection.

That is why we need intermediaries within the ring of secrecy, such as the ISC, David Anderson and the former judges who are the intelligence commissioners, to scrutinise the agencies. Even so, those outside the ring of secrecy constantly demand to be persuaded. I have no complaint with that; they perform a valuable service in insisting that the agencies make their case. I am very conscious of the risk of those who have been inside the ring of secrecy, as I have been, becoming beguiled by the agencies. The case has to be made, scepticism is right and trust has to be earned.

However, those who are sceptical do not assist the conversation when they overstate their case. I thought there was one respect in which the noble Lord, Lord Strasburger, overstated his case today: he was surely not right in saying, in his defence of Edward Snowden, that if it had not been for him we would not have had this national conversation. I remind him that the communications data Bill—indeed, the noble Lord served on the Joint Committee—preceded the revelations of Edward Snowden, and that discussion was, rightly, already happening.

One of Ed Snowden’s revelations that garnered considerable concern and attention was the capability of the agencies regarding the bulk collection of communications, and that discussion has indeed been valuable. The authorities made a mistake, if I may say so, in not being candid earlier about the fact that that capability existed. However, the discussion also led to a great deal of misunderstanding. What the ISC found, and David Anderson confirmed, was that the bulk collection or bulk interception of intelligence does not amount to mass surveillance. This led people into the sort of mistake that the noble Lord, Lord Blair, quoted. On the contrary, a capability that in any case has to be highly selective, because the interception agencies have access to only a limited number of message carriers, is subject to filters that minimise the risk of innocent communications being picked up. Nevertheless, I acknowledge that the case for using that capability has to be made. The ISC saw examples of where the search had given leads that led to the prevention of terrorist acts. We were less successful than Mr Anderson in persuading the agencies to allow us to quote those examples, which he did in his report. He was satisfied, which reassured me that the ISC was probably right to be satisfied as well.

One aspect of the revelations of Ed Snowden, from which we should take some reassurance, is the following. He removed from his employers 1 million NSA reports and 60,000 reports that GCHQ had shared with the NSA. People may have been surprised by the extent of the agencies’ capabilities revealed by the reports, but it is striking that out of 1 million NSA reports and 60,000 GCHQ reports, none revealed any significant examples of abuse of power against citizens. It would be right to take reassurance from that. The annual reports of the Intelligence Services and Surveillance Commissioners state that the UK agencies are meticulous in their observance of the law. That has always been my experience, and other people who have had sight of the work of the intelligence agencies and who have spoken tonight have also confirmed that that is their experience.

Although some of the details of the agencies’ capabilities have to remain obscure, I think it is common ground among us all that there is no need for the legislation that governs these activities also to be obscure. Both the ISC and David Anderson—and, indeed, the Government—agree that entirely new legislation is needed to replace the present ramshackle and almost impenetrable structure of laws. That the law is so ramshackle and opaque is not, as some have suggested, the result of some sort of establishment conspiracy. What has happened—I have seen it passing before my eyes—is that over the last 30 years successive laws have piled up to deal with new situations; that is, to cope with developing technology and changing threats.

It is worth just reminding ourselves of this succession of new laws, which will be very familiar to other noble Lords in this Chamber: the Telecommunications Act 1984, which was one of the first; the Interception of Communications Act 1985; the Security Service Act 1989, with another in 1996; the Intelligence Services Act 1994; the Human Rights Act 1998; the now notorious Regulation of Investigatory Powers Act 2000; and, in the last few years, the Justice and Security Act 2013, the Data Retention and Investigatory Powers Act 2014, and the Counter-Terrorism and Security Act 2015. This has been legislative Pelion piled on Ossa, and it needs to be dismantled and rebuilt in a transparent fashion. That is the task in front of us—a big task but a necessary one.

Having said that, the basic elements of the legislation are sound. They are built on the principles that intrusions on privacy have to be restricted to the purposes of preventing or detecting serious crime and protecting national security, and that they must be both proportionate and necessary for those purposes. It is worth reminding ourselves that any intrusion on privacy beyond those purposes is a criminal act, and should be. There also has to be effective authorisation and scrutiny within the ring of secrecy to ensure that the agencies are not both judge and jury over their own actions.

At the same time, new issues arise as technologies change and threats develop, so there are always new questions to answer. To what extent should communications providers be compelled to retain data for inspection—the issue that arose in the communications data Bill? In what circumstances should the data be inspected and who should authorise that? Should our own nationals be given greater protection than others? That has always been the case and it was the basis on which the legislation was built, but in an international world is that still right? And what rules should govern our sharing of intelligence with other nations?

On one matter, like other speakers, I cannot go all the way with David Anderson. I do not believe that ultimate responsibility for authorising intrusion should be transferred from Minsters to judges. Others have pointed out that decisions on intrusion require political judgment, not just the application of law, and should be made by people who are politically accountable. The noble Lord, Lord Blencathra, said that people supposed that there was a risk that if a judge took a decision and something went wrong, the Secretary of State would be blamed for it. He dismissed that risk and I think he was right to do so. My concern is exactly the reverse of that. It is that the judge will be blamed for what ought to be an executive act. I have an illustration of that: the case of the murder of Fusilier Lee Rigby, which the ISC examined. Let us suppose that a judge had declined to authorise a warrant for the surveillance of the killers, Adebolajo and Adebolawe, and that this refusal had proved critical in failing to prevent the attack. That could have happened. A judge should not be held accountable for such a decision; it is an executive act and the decision should be taken by the Executive.

Having said that, there is some scope for compromise with David Anderson’s recommendations. It seems to me that the role of the commissioners can be expanded and perhaps rationalised, and that the judicial commission should be given a more active and immediate role in scrutinising Ministers’ authorisation of warrants. I was particularly struck by the suggestion from the noble Lord, Lord Blencathra, that we are more likely to get international co-operation when there is judicial authorisation. In cases where we go to another country to seek access to data that are in its possession or in the possession of institutions based in that country, we may carry much more plausibility if there has been such authorisation. That suggestion, if I may say so, is well worth considering.

One other aspect needs to be mentioned. An effective structure to protect us against terrorism will not depend on our legislation alone. Again, this was illustrated by the murder of Fusilier Rigby. The vital clue which could have prevented the killing was in an internet message discovered only after the event. As others have said, communications providers say that they will comply with legislation in co-operating with authorities to prevent serious crimes but they cannot do so because they are subject to conflicting legislation in the different countries in which they operate. In particular, as has been said, legislation in the United States, where many of the principal providers are domiciled, inhibits such co-operation.

There, I agree with the noble Lords, Lord Scriven and Lord Blencathra, that this problem can be solved only by international diplomacy, not by our legislation alone. One report that we do not have in front of us tonight is that of Sir Nigel Sheinwald, the Prime Minister’s envoy on this subject. There have been rumours of what that report says: that he urges—I think rightly—a new international agreement, particularly with the United States, which will assist in this area. The suggestion from the noble Lord, Lord Blencathra, about judicial authority may well help in that. There is one thing that I hope the Minister might be able to tell us in responding to this debate. Can he tell us any more about the work of Sir Nigel Sheinwald in developing diplomatic relations with other countries on this vital issue?