Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, it will not surprise my noble friend to learn that I oppose the amendment that he has just moved. We made reference during our previous day on Report to papers that were presented by the Government at the time of First Reading. Those papers included, as was mentioned on Monday of this week, a paper in which GCHQ explained why the bulk acquisition of communications data material might be crucial to interdicting a major terrorism event which it thought was likely to occur, or might possibly occur, in the near future.

The issue was then referred to David Anderson—and I am surprised that my noble friend does not accept what Mr Anderson, the independent reviewer, said on the matter. He reminded us that three of the powers under review—bulk interception, bulk acquisition of communications data and bulk personal datasets—were already in use across the range of MI5, MI6 and GCHQ activity, from cyberdefence, counterterrorism and counterespionage to combating child sexual abuse and organised crime. He said:

“They play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”.

The GCHQ paper to which I referred dealt with “further afield”.

Mr Anderson continued:

“After close examination of numerous case studies, the review concluded that other techniques could sometimes, though not always, be used to achieve these objectives: but that they would often be less effective, more dangerous, more resource-intensive, more intrusive or slower”.

Mr Anderson concluded that there was a proven operational case for three of the powers already in use, and he agreed that there was a distinct though as yet unproven operational case for the fourth power: bulk equipment interference. He also recognised the “breath-taking”—that was his word—pace of change in this area, and that we needed to make sure that the authorities had the proportionate powers that were required to protect this country, and other countries, from terrorism.

Therefore, the Bill provides the powers with a very elaborate set of protections. We also have—it is available in the Public Bill Office—the Bulk Acquisition DRAFT Code of Practice, dated autumn 2016: it is very recent. In paragraphs 3.10 and 3.11 of the code—and, indeed, elsewhere in the code—the most elaborate protections are described. For example, paragraph 3.10 contains operational guidance and advice for those who are dealing with these matters and states in terms:

“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.

Paragraph 3.11 of the code sets out in four very carefully drafted bullet points the elements of proportionality that should be considered before the powers are used. It includes assessing whether other methods have been considered and whether those other methods could have provided a reasonable outcome without the necessity of the invasion of privacy which undoubtedly the provisions describe.

I therefore ask my noble friend to state, when he comes to reply to this short debate, what his view is of the code of practice—and, in particular, of the part to which I referred.

[Lord Paddick]

The amendment relates specifically to internet connection records being acquired, and I have yet to hear my noble friend address any of his remarks to the issue of those records.

[Lord Carlile of Berriew]

If my noble friend wants me to be specific, I will, but I was trying not to take up too much time. Let us take the example of a piece of information, given to a security service, that people in possession of a bulk delivery of a certain type of telecommunications equipment, say a phone brand, are involved in the planning of a terrorist event. In order to find out quickly who these people are, the authorities would need to attack the bulk, so as to exclude all people who are not involved in the planned event. This is an absolutely routine technique that is used. I see one or two of my noble friends turning round in surprise. If they are surprised, they have not even read modern spy novels, let alone about the reality of what is being done by intelligence agencies all around the world.

The answer to my noble friend is as simple as that. I will just repeat my question, because I would like him to reply to it in due course. I take it that he has read the code of practice. What is missing from the code of practice that is required in order to provide the protection he wishes for? It is all in the code of practice; it is all in the statute. I apologise for repeating something I said on Monday, but these provisions, as drafted, are a careful and responsible response by a Government who wish to do no more than the state absolutely has to, safely, to protect their citizens.

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord Paddick

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Lord Paddick]

My Lords, I am saying that the American model provides significant safeguards, in that somebody represents the side of privacy and civil liberties in the argument; it is not simply a case of the security agencies’ side being put, as perhaps some might see in this country.

Unlike the previous amendment, this amendment does not seek to replace the Independent Reviewer of Terrorism Legislation. On the contrary, noble Lords will see that the independent reviewer must be consulted on the appointment of members of the board. This is complementary to, not a replacement for, the Independent Reviewer of Terrorism Legislation. The current reviewer, Mr David Anderson, has previously argued that the post of independent reviewer is under-resourced and that it does not cover a wide enough range of laws. He said:

“If appropriately staffed and directed by the Independent Reviewer, the proposed new body could sharpen that investigative function and increase its scope”.

I accept that Mr Anderson also has concerns, and no doubt my noble friend Lord Carlile of Berriew, his predecessor, will tell us that he too has concerns. However, it continues to be the view of the Liberal Democrats—

[Lord Carlile of Berriew (LD)]

My noble friend tempts me to rise at this stage because there should be no misunderstandings. Does he accept that David Anderson has made it absolutely clear that he is opposed to this provision?

[Lord Paddick]

My Lords, Mr Anderson has made statements in the past in which he has supported the idea, but I accept that he also has serious concerns about it.

--- Later in debate ---

[Lord Paddick]

I am very grateful to the noble Baroness. Yes, of course I understand that for the security agencies, at every point when they are deciding to apply for warrants or to carry out intrusive activities, civil liberties are at the forefront of their minds within the framework provided to them by the law.

I come back to the point that a form of this privacy and civil liberties board has been agreed by all sides and put into legislation, but the Government have not enacted it. This is a variation on what is already on the statute book, and something that all sides have previously considered and agreed to.

Throughout the debates on the Bill, the Government have maintained that it is world-leading legislation. I believe that it can be regarded as such only if the Privacy and Civil Liberties Board is a part of it. I beg to move.

[Lord Carlile of Berriew]

My Lords, I wonder whether we might first get what might be called “private grief” out of the way—that is, the difference between my view on this matter and that of my party’s Front Bench. If I run the risk of being accused of consistency on this, I am proud of it.

Let us start with the point that my noble friend made about the United States of America. Yes, the United States of America has the body he has described, but how effective is it? I wonder whether my noble friend has examined the Patriot Act and its consequences. It is a set of provisions that allows the American authorities to do what is unimaginable here; for example, at their own whim, to look up the credit card transactions of any citizen throughout the United States for any given period. I do not want to replicate that.

I want also to pick up on a point made very briefly but eloquently by the noble Baroness, Lady Manningham-Buller. This amendment, in my judgment, betrays a lack of confidence in the security services that is completely unjustified. Anyone who has ever looked properly at the way in which the security services have been managed, at least in recent times, or anyone who, like myself, has examined the behaviour of the security services in very difficult circumstances in Northern Ireland in recent times, will know that the management is extremely rigorous and does not need the help of an expensive and ill-conceived quango to ensure that its staff behave properly.

The risks to national security from the sloppy drafting of subsection (5) of the amendment are manifest. There is no provision here for the members of the board to be directly vetted. That means that whoever the members of the board were, they would be entitled under subsection (5)(a) of the amendment to have access to,

“all relevant material (including classified information) held by any government department or agency”.

Presumably it would be their opinion as to what was relevant. Indeed, they would be able to call as witnesses or take statements from,

“personnel of any department and agency”.

That is a provision completely unparalleled in our history.

Furthermore, this proposal usurps the powers of the Intelligence and Security Committee. There is nothing provided by the amendment that the Intelligence and Security Committee cannot at least reasonably do. The amendment clearly envisages that this will be a political board, but outside the control of Parliament, because it says that no more than three members should come from any single political party. It is a sort of freeloading, undisciplined version of the Intelligence and Security Committee, without the control of either the Executive or Parliament.

Also, it looks like a very expensive board, compared, at least, with the Independent Reviewer of Terrorism Legislation. Neither David Anderson, nor I as his predecessor, ever complained about our remuneration as independent reviewer, but it pales into insignificance by at least two noughts on the end compared with this unnecessary board.

Furthermore, such a board would duplicate not just the Intelligence and Security Committee, but all the additional provisions, some contained in welcome government amendments, that have been added to the Bill. I have been watching every detail of the Bill over its very long period of gestation. More information was given when the Bill was first tabled than on any other Bill I have ever known, including more information about the security services than we have ever seen in parliamentary papers. We will now have an independent reviewer, commissioners, judges—a whole panoply of people applying sound management and good judicial principles to the considerations that the board would vaguely look at. It is not even a civil liberties board: it is not what it says on the tin, because civil liberties are not merely connected with investigatory powers.

This proposal is a fudge and it is misleading. I apologise to my noble friends for saying so, but as I have said, I have been completely consistent about this. It is one of the worst proposals I have seen on national security that has ever been proposed to your Lordships’ House. I shall not support it, I hope that others among my noble friends will not support it, and I urge the House to reject it.