Investigatory Powers Bill

Lord Garnier Excerpts

Tuesday 15th March 2016 Commons Chamber

[Andy Burnham]

I do not believe it is. I put it to the hon. Gentleman that national security is a very broad term that is not defined in the Bill. The Joint Committee encouraged the Government to define it in order to give people greater security. As I have just said, activities have been carried out in the past under the banner of national security that I think he would struggle to justify as such.

The problem with the “economic well-being” test is that it potentially opens up a much wider range of activities to the most intrusive powers. The Bill states that matters of economic well-being must be only “relevant” to national security, not directly connected to it, as the Home Secretary seems to imply. This raises the issue of what extra activities the Government want to cover under this banner that are not covered by national security. A cyber-attack on the City of London has been mentioned, but surely that would already be covered by national security provisions.

Let me put two suggestions to the Home Secretary. First, I suggest that she accept the Joint Committee’s invitation to define “national security” more explicitly. Alongside terrorism and serious crime, it could include attacks on the country’s critical or commercial infrastructure. Secondly, if she were to do that, the economic well-being test could be dropped altogether. That would build reassurance among Opposition Members that there could be no targeting in future of law-abiding trades unionists, as we have seen happening in the past.

The third area of concern is with ICRs themselves—both their content and their use.

[Sir Edward Garnier (Harborough) (Con)]

Is the right hon. Gentleman seriously suggesting that a judicial commissioner would permit a politically motivated interception on a trade union?

[Andy Burnham]

I would gladly share with the right hon. and learned Gentleman some of the papers I have about the historic injustices that we have seen in this country—[Interruption.] But it is relevant, because those convictions still stand to this day. I said earlier—I do not know whether he was in his place—that revelations have been made that information supplied to blacklist people in the construction industry came from the police and the security services. I welcome the move to codify all this in law so that those abuses cannot happen again, but I hope that he will understand that Labour Members want to leave nothing to doubt. Why should the most intrusive warrants be used on the test of economic well-being? What does that mean? Are we not entitled to say that national security alone can justify intrusion on people’s privacy in that way?

--- Later in debate ---

[Sir Edward Garnier (Harborough) (Con)]

Any Bill that fundamentally affects the relationship between the citizen and the state is bound to be controversial. This Bill is no exception, even though much of what it does is to consolidate in one statute powers to interfere in the citizen’s private life and communications that are presently to be found in existing statutes. Although article 8 of the European convention on human rights permits interference with the rights protected by it if

“in accordance with the law and…necessary in a democratic society in the interests of national security”

and so on, Parliament has a particular duty to examine closely legislation of this sort to ensure that the Government and the security and law enforcement agencies are not asking for too much and that we are not supinely giving them too much. We find the words “necessity” and “proportionality” frequently in this Bill, and that is not an accident.

Today’s debate is not new. Much of what will be said today will have been said in the debates on the 20th-century and early 21st-century legislation that is to be consolidated in this Bill. As technology has advanced we have had to adapt our laws, first, to cope with the ability of those who wish to do us harm to do so more quickly and effectively, and, secondly, to ensure that technology is not used by the state improperly to interfere with the citizen, just because it can.

As long ago as the 14th century, Parliament outlawed eavesdropping under the Justices of the Peace Act 1361. In essence, for the past 600 years or so, the intrusion into the private lives of others by use of illegal listening devices, be it the human ear or electric surveillance machinery, has been a topic of public debate. No one doubts that our law enforcement agencies and the security services need to be able to detect and prosecute serious crime, and to counter terrorist and other threats to the country and our fellow citizens. The threat to our country and its interests is, I am sure, as serious today as it has been since the second world war, and the capacity of the criminal underworld or our national enemies to transfer money, to traffic people for enslavement or sex or to move drugs, weapons and explosives has been greatly enhanced by the internet and other forms of electronic telecommunication. Whereas in 1361, the dark, a disguise and the speed of a horse were all that the King’s men had to contend with, so much of what we have to contend with now is unseen, unheard, instantaneous and undetectable. It is getting more and more difficult to stay ahead of the criminal gangs and terrorists who have access to the most sophisticated of communication systems, which can be operated from an iPhone anywhere in the world.

[Nusrat Ghani (Wealden) (Con)]

Does my right hon. and learned Friend agree that to help our police and security services to transfer what they do in the physical world, they need the powers to do that work in the digital world, and that without the Bill we are asking our security services to do their job with one hand tied behind their back?

[Sir Edward Garnier]

I agree with that.

I do not have time in this Second Reading debate to do more than state that, as a matter of principle, I wholeheartedly support the aims and policy behind the Bill. The proposals to enable the state to intercept others’ communications or to interfere with equipment in a way that would, without this legislation or the laws it replaces, be unlawful, are sensible. The requirement for the Secretary of State to issue warrants that have to be approved by judicial commissioners, and other protections against the state’s misbehaviour with regard to the collection and retention of communications data, are rightly in the Bill. The ability to acquire bulk data is necessary. The checks and balances governing the police, and the internal supervision arrangements referred to in schedule 4, are right, subject to further consideration of the seniority of the officers involved. All that and more is justified and defensible in the interests of protecting us from harm.

That said, there is no room for complacency or any suggestion that the Bill is the perfect answer to a difficult set of problems, which are most obviously defined as the border between public protection and freedom on the one hand, and excessive state power on the other. In my time as a Law Officer I had, from time to time, to deal with the security services and the law enforcement agencies. I hope that I will not be accused of undue naiveté, but my experience of them in government was that they were scrupulous to obey the will of Parliament and the law. I was impressed by the fact that, from the top down, there was a genuine desire to do only what was right and to seek clarification where the law was complicated or capable of being misconstrued, so that they did not stray across the line between what was possible and what was lawful.

Based on my experience, I am sure that those entrusted with the type of work described in the Bill will conduct themselves within the law and that, if errors are made, it will not be for want of trying to keep on the right side of the law. The number of intercepts warranted every year by a Secretary of State may not be large in comparison with the billions of emails sent, mobile telephone calls made and internet searches carried out every year. It may be—I am guessing—that the three Secretaries of State will collectively issue fewer than 5,000 each year. If the law is to be obeyed, however, every warrant must be considered by the Secretary of State or a Scottish Government Minister. The Foreign Secretary, the Defence Secretary and the Home Secretary will have to give every application for a warrant from an intercepting authority the time and the close attention that it deserves.

Of course, I believe what the Home Secretary said in her response to the intervention from my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), and no doubt she will never take shortcuts. The current holders of those offices are hard-working Ministers, who are capable of reading a closely argued and complicated brief late at night after a long day of other work in their Departments, in Parliament or travelling here or overseas. Even if I have overestimated the number of applications for warrants that they will receive each year, I am reasonably sure that they will consider several every day. That is much reinforced by what my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) had to say a moment or so ago.

This should not be a tick-box exercise. Although I accept that some applications will be more straightforward than others, I do not expect that even in the easier cases, it will be a question of skim-reading the application and initialling it. Each application must be fully argued on paper on its own facts and considered personally by the Secretary of State. I hope that no submission to the Secretary of State will merely recite the wording of clauses 17 and 18; I hope that all submissions will go into detail about why the warrant is necessary, not least because they will have to be carefully reviewed by a judicial commissioner. That is all the truer in urgent cases when a judicial review follows the issuing of the warrant, or in cases involving legal privilege under clause 25.

My concerns about the practicalities of all this are added to when one considers this point, which was also made by my right hon. and learned Friend. Authorisations under part 3 of the Bill are likely to be numbered in the many hundreds of thousands every year and will be made by what, to my eye, look like middle-ranking police officers and other officials. As one can see from schedule 4, those officials are inspectors and superintendents, majors and lieutenant colonels, and other civil servants of that rank. As I learned yesterday, some of them will be part-timers. I need to be assured that the necessity or expedience of every case will not outweigh the need for formality and proper scrutiny of every such application. If we are to have complete confidence in the vetting system, I urge Ministers on the Front Bench and the rest of the Government to think very carefully about those aspects of the process.

Finally, clause 222 requires the Secretary of State to prepare a report on the operation of the Act five and a half years after the Bill has been passed. In any view, that is too long. I suggest that it should be done after two years. If the Government refuse to reduce the period, I hope that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and the ISC—as well as Mr David Anderson, the independent reviewer, who produced an invaluable report last summer—will want to do so themselves.