Investigatory Powers Bill

Lord Clarke of Nottingham Excerpts

Tuesday 15th March 2016 Commons Chamber

[Mrs May]

The right hon. Gentleman has raised a very important point. He will be aware of one particular case in recent years in which the admissibility of evidence at inquest has been an issue. That is not a matter that we are putting in the Bill. It was explored when the closed material proceedings were brought into legislation through certain cases. We are looking actively at whether there are other means by which we can ensure that the appropriate information is available when such cases are being considered.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

As someone who has also signed thousands of those warrants, with the benefit of hindsight I welcome the judicial commissioner having a look as well. I congratulate my right hon. Friend on making that significant change. Does she recall that the Bill will give the judicial commissioner the power to act only in the same way as a judge might act in a case of judicial review, which means overruling her only if she is behaving in a completely unreasonable way? Does she think that that is necessary, and does she not accept that if a judicial commissioner disagrees with her, there might be some value in at least having a discussion that covers broader principles of judgment and is not simply based on the fact that she is behaving in a way in which no reasonable man or woman would?

[Mrs May]

With a degree of prescience, my right hon. and learned Friend refers to the very next issue that I will address in my speech. I was going to point out that I know some right hon. and hon. Members have scrutinised the language in the Bill and have raised exactly that issue. I want to be absolutely clear: under the Bill, it will be for the judicial commissioner to decide the nature and extent of the scrutiny that he or she wishes to apply. Crucially, I can reassure right hon. and hon. Members that commissioners will have access to all the material put to the Secretary of State. The judicial commissioner will look not just at the process, but at the necessity and proportionality of the proposed warrant.

[Mrs May]

If I may, I want to make a little more progress.

[Mr Kenneth Clarke]

Will my right hon. Friend allow me to ask a supplementary question?

[Mrs May]

It is more than my life’s worth not to give way to a former Home Secretary.

[Mr Clarke]

Times have no doubt changed, but the information in individual cases is sometimes very simple and limited, because the case is thought to be so obvious. Will the judicial commissioner have the ability to ask for more information that has not gone before the Home Secretary if he or she wishes to know a bit more about the case and check what has been put before the Home Secretary?

[Mrs May]

I have to say to my right hon. and learned Friend that that will not be the case. The point is that it is important that the Secretary of State and the judicial commissioner make decisions on the basis of the same information being available to both of them. If the judicial commissioner decides that there is not enough information available, he or she would presumably refuse the warrant. It would be open to the Secretary of State to appeal to the Investigatory Powers Commissioner to look at the warrant again, or if the warrant is refused in such a circumstance, the Secretary of State might themselves say, “Take the warrant back, put in more information and resubmit it.”

--- Later in debate ---

[Mr Kenneth Clarke (Rushcliffe) (Con)]

That is one of the most combative and partisan speeches in support of an abstention on the Second Reading of a Bill that I have heard from a Member of this House for a very long time. I urge the hon. and learned Member for Edinburgh South West (Joanna Cherry) and her Scottish National party colleagues to calm down a bit and accept that everyone is in agreement that this is a huge and comprehensive Bill. Its terms are often quite obscure, and it is not light reading to try to analyse it. I think we are all agreed that some issues need to be addressed in Committee and at later stages. Despite her excellently combative speech—I have nothing against partisan politics on the right occasions—it would be useful to accept that there is almost a consensus in this House about the principles that we should be adopting. As I think the standards of liberal democracy in this country at the moment are not too bad, we need legislation that enshrines them for the future, in case even wilder protest groups eventually get elected to the House, so that we stick to those principles.

The principles are, I think, that we wish to give the strongest possible support to our intelligence and policing authorities to defend the national interest and to defend our citizens. There are very real dangers in the modern world and we must not be left behind. When our intelligence and police services are dealing with terrorists, or serious organised crime—drug trafficking, human trafficking and so on—or child abuse, as people have said, I want them to be as tough as anybody else’s intelligence and police services. I want them to be as effective as they possibly can be and as successful in avoiding risk; that is essential.

Spies—the intelligence services—have had to do slightly odd things ever since they first emerged on the scene, ever since they started steaming open envelopes and started intercepting telephone calls. We must not be left behind by technology, and we must not be left behind by modern society. The spies have to act in the same way towards the internet as they have been acting towards envelopes in the post for the past 200 years. I hope we are all agreed on that. I hope we also accept that this poses a dilemma for a liberal democracy like our own, because we have to do this as well and as toughly as anybody else in the world, and to the highest technical standards, without compromising our underlying values. The reason we want such actions to be so effective is that we have, we hope, the highest standards of human rights and the highest regard for the rule of law and democratic accountability, but perhaps the thing we have neglected the most in recent times as the pace of events has speeded up is privacy—the privacy of the individual. We have recent examples—although not in this area—of the abuse of privacy by the press and others, of which we are only too well aware. I think our citizens expect that their privacy should be intruded on only in the right cases.

The real heart of the test of getting the balance right—we all talk about getting the balance right—is the proportionality of very intrusive powers, which should only ever be used when the national interest is threatened and our security is at stake. That should be—

[Sir Edward Leigh]

rose—

[Mr Clarke]

I will give way just once.

[Sir Edward Leigh]

I am sorry I am worrying on about this issue, but my right hon. and learned Friend has been Home Secretary. Let us suppose that there is a matter of national security and acute political crisis, and a Home Secretary feels it is necessary to authorise some snooping, for want of a better word—I am sorry to use that word—on a Member of Parliament’s communications with a constituent who has raised these issues. The Home Secretary said when I intervened earlier, “Don’t worry; the judge will authorise it or review it, and the Prime Minister will consider it too.” Judges are very responsible, but they do not really understand these acute political sensitivities. Should not somebody else, like the Speaker, have some sort of oversight to protect these very valuable communications between Members of Parliament and their constituents?

[Mr Clarke]

I do not think I am persuaded, although I do not totally reject my hon. Friend’s case. I was about to say that we must realise there are dangers in a democratic society if we are not constantly vigilant against some future Administration—although none that I have experienced, either in opposition or in government have done so—abusing this. There are western democracies —I think some things have happened in America at times that we would not approve of here—where political opponents, political rivals, have found the intelligence services and other sources of information used against them. [Interruption.] My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) recklessly suggests France. A Frenchman might not agree, but it would not surprise me if that were the case. In modern politics, the temptation to do that is actually quite strong.

The other reason for insisting that this legislation is as tight as we can make it is that it is all too easy to get accustomed to these things. I was Home Secretary, and Home Secretaries are overwhelmed with applications for warrants. In the middle of the night, doing a red box—contrary to popular belief, I was conscientious about my red boxes—there is very little time to make decisions. There are vast numbers of applications. I used to make a point of challenging one or two just to find out more detail than I had been given.

The volume hitting my right hon. Friend the Home Secretary is massive, compared with that which I experienced. That shows that there is a danger. In the intervening 20 years, the world has changed so profoundly that I suspect she has vastly more of these cases to consider than I had, and I suspect some of them involve much more difficult matters of judgment than most of the ones that I faced. Even in those days, when I suspect we were less concerned about these things, I found some pretty surprising applications being made if I went into what they were about. It is too easy even for the best people in the intelligence service—

[Hannah Bardell (Livingston) (SNP)]

Will the right hon. and learned Gentleman give way?

[Mr Clarke]

No. Others want to get in and I do not think I will get any more injury time. I apologise.

It is too easy for those in the intelligence and police services to get used to such power. It is too tempting to use it against people who are causing trouble by making complaints or leaks. There have been examples of that, and that is what this Bill is about.

My right hon. Friend the Home Secretary has brought forward a Bill that makes the biggest advance that I can remember for a generation, introducing the principle of judicial involvement and judicial oversight, for which I have the greatest possible respect. It is a quite dramatic change. We have also strengthened the powers of the Intelligence and Security Committee, and I hope my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, will make the fullest use of them. That Committee is always faced with the problem that it cannot debate in public most of what is ever done or heard in private. We have to rely on having the right people to hold to account those concerned.

We need to get the Bill right. Most of the points are not the big, wide, partisan points that I was talking about a moment ago. They are in the detail—the devil is in the detail—and there are some quite important points that we should still question. It is true that there is a vast amount of activity under the general title of economic wellbeing. I have known some very odd things to happen under that heading. National security can easily be conflated with the policy of the Government of the day. I do not know quite how we get the definition right, but it is no good just dismissing that point.

Most of my points are Committee points and several have been raised already. I did not know that Igor Judge had given his opinion to the Select Committee that the Wednesbury test of reasonableness was not appropriate. He is an old opponent of mine in the courts, and an old friend of mine for most of his life. I am an out-of-date and extinct lawyer and he is a very distinguished and very recent lawyer. Presumably, if the judge thinks the Home Secretary is not following the legal principles, he can overrule an application.

Questions of judgment and proportionality are the most important of all and worry me most. The one Committee point that I shall raise, and the one I feel most strongly about, was raised by the shadow Home Secretary. I am worried by part 3. The whole debate is conducted on the basis that we should all lie fearful in our beds and that the Bill is designed to deal with terrorism, jihadists, child abusers and human traffickers. Actually, vast numbers of people are getting powers. Part 3 gives all kinds of curious public bodies—every local authority, county and district, where one official can get the approval of one magistrate—access to huge amounts of information. Too much is already available. I doubt the wisdom of that. I think we will find other points that should be corrected during the progress of the Bill through this House.