Investigatory Powers Bill

Lord Macdonald of River Glaven Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Macdonald of River Glaven (LD)]

My Lords, I start by acknowledging the value of the work of our security services and its contribution to the security, prosperity and maintenance of freedom in our country.

During the five years that I worked closely with them, I found the security services to be well led by men and women who were clearly sensitive to the need to find an appropriate balance between security and liberty and thought deeply about these issues. In particular, I acknowledge the work of GCHQ, which is likely to be more impacted than most by this Bill. It is an extraordinarily important national asset and extremely well led by its director Robert Hannigan. He and his senior team seem sensitive to public concern and eager to find a legal framework that wins public confidence for their work.

I believe that it was a mistake for the Government to connive at a situation where some security programmes, such as Operation Tempora, the GCHQ programme, stretched the legal authorisation scheme then in force under RIPA to breaking point. So I welcome this present Bill as a serious attempt to create a framework of law in which the security services can do what is necessary to protect us, but within the context of a respect for civil liberties that is appropriately robust.

I want to address three areas. First, noble Lords have already spoken about future-proofing. This was a growing problem with RIPA. The speed of technological advance is quite extraordinary. The provisions that will be debated in detail by your Lordships’ House need to stand the test of time into at least the medium term, and should be judged against their capacity to do that.

Secondly, I encourage noble Lords to be realistic about the capacity of internet connection records to lay bare the most intimate details of a person’s life. This is not like telephone data; wholesale retention for 12 months means allowing access to more than raw data. It allows access to people’s lifestyles, beliefs, sexual practices, health and perfectly legal secrets. So we should consider this part of the Bill with that reality closely in mind. For my part, having seen the importance of communications data to serious criminal prosecutions—almost every serious criminal prosecution that was brought when I was chief prosecutor relied on data of this sort—I am inclined to support the clauses which refer to internet connection data. However, in debating these matters, we should recognise the significant concern outside Parliament in so far as this part of the Bill is concerned.

Thirdly, I will deal with protections against abuse. Foremost among these are the judicial commissioners. As someone who has been calling for a judicial role in the area of security practice for very many years, I strongly welcome the proposals in the Bill for judicial commissioners. There is a question as to whether they should be operating a judicial review test or a merit-based one. Some, including the noble Lord, Lord Campbell, say that it is for a politician to judge the merits and that a Secretary of State should be overturned only if his or her authorisation is irrational or unlawful. Others argue that a judicial confirmation of the merits would be an important protection against political abuse of these highly intrusive powers. I am inclined to agree, subject to debate, that security decisions are for the Minister and the lawfulness of the process is for a judge.

In making my final point about the judicial commissioners, I make clear that I yield to no one in my admiration for our retired judges. But it is very important that the judicial commissioners have, within their number, a majority who are active judges, adjudicating routinely, with full public confidence, in other areas of the law at the highest levels. This would encourage and underline a public view that the commissioners are independent and worthy of public confidence in their work. Let us have as many senior, working judges as possible among the judicial commissioners. In that way, we will avoid any hint or suggestion—however undeserved—that they are a club that can be won over by one side or another. Public confidence in the process of authorisation can only be enhanced if we ensure a majority of working judges within that important body of people.