Investigatory Powers

Lord Rosser Excerpts

Wednesday 8th July 2015 Lords Chamber

[Lord Rosser (Lab)]

My Lords, not surprisingly, this has been a well-informed debate between the heavyweights in this field. I am in the same position as the right reverend Prelate the Bishop of Chester of not being an expert, although I am not sure that I can follow him and equate that to mean that I might be regarded as a gentleman.

We are potentially considering a number of reports in this debate, including the Intelligence and Security Committee’s report on privacy and security, the latest annual reports from the Chief Surveillance Commissioner and the Intelligence Services Commissioner and the report on investigatory powers entitled A Question of Trust by David Anderson, the Independent Reviewer of Terrorism Legislation. Most of my comments will be related to the Anderson report, which is the most recent of the four.

The Anderson report was commissioned on the basis of an opposition amendment when Parliament was asked to legislate quickly to introduce the Data Retention and Investigatory Powers Act 2014. We argued that it was the right time for a thorough review of the existing legal framework to be conducted as we and others no longer felt that the current arrangements were fit for purpose. As has been said on more than one occasion, the report by David Anderson into the use of investigatory powers by public agencies in the UK recommends that the legal framework for the use of such powers should be overhauled, as the current law is fragmented and often obscure in an area of activity where advancements in this digital age have profound and rapid implications. On page 245 of the report, David Anderson says of the present situation:

“The technology is hard to grasp, and the law fragmented and opaque. Intelligence is said to have been harvested and shared in ways that neither Parliament nor public predicted, and that some have found disturbing and even unlawful. Yet this was brought to light not by the commissions, committees and courts of London, but by the unlawful activities of Edward Snowden. Informed discussion is hampered by the fact that both the benefits of the controversial techniques and the damage attributed to their disclosure are deemed too secret to be specified. Politics enters the picture, and for informed debate in the media are substituted the opposing caricatures of ‘unprecedented threats to our security’ and ‘snoopers’ charter’”.

Mr Anderson goes on to say:

“If one thing is certain, it is that the road to a better system must be paved with trust”,

and that:

“Trust in powerful institutions depends not only on those institutions behaving themselves … but on there being mechanisms to verify that they have done so”.

With the need to promote trust in mind, he has formulated his recommendations on the basis of five principles: the minimisation of no-go areas; limits on powers; rights compliance; clarity and transparency; and a unified approach. These principles ought to play a key part in the development of the law and the practice of investigatory powers. Under the fifth principle of a unified approach, Mr Anderson has indicated his disagreement with the Intelligence and Security Committee’s report Privacy and Security: A Modern and Transparent Legal Framework, which states that,

“there should be a clear separation between intelligence and law enforcement functions”.

The Independent Reviewer of Terrorism Legislation feels instead that the seamless and co-operative working relationship between the security and intelligence agencies and the police is a feature of the United Kingdom’s security landscape that is widely admired across the world, but rarely successfully imitated. Part of the secret of that success, Mr Anderson has said, is that the,

“police and agencies … interoperate across significant parts of their work, a process that has accelerated since the London bombings”,

of 10 years ago, which are so much in our minds at present.

In line with the theme of his report, which is entitled A Question of Trust, Mr Anderson states that the investigatory powers available to public authorities must be shown to be necessary, clearly spelt out in law, limited in such a way as to conform to international human rights standards, and subject to appropriate safeguards. Included in other recommendations in his report are that warrants for the interception of communications should require judicial approval rather than the approval of the Secretary of State, as is currently the case. However, an exception would be made in cases where the warrant is required in the interests of national security relating to United Kingdom defence or foreign policy, where the approval of the appropriate Secretary of State would be required.

A further recommendation is that the power to require service providers to retain communications data for a period of time should continue to exist, as currently provided for under the Data Retention and Investigatory Powers Act 2014. The capability of the security and intelligence agencies to retain intercepted material in bulk should be maintained with additional strict safeguards. Further, the three existing oversight commissioners should be merged into a single independent surveillance and intelligence commissioner. Finally, the role and jurisdiction of the Investigatory Powers Tribunal should be expanded.

On further issues, the independent reviewer has said in his report that there are possible benefits to requiring communications service providers to retain their records of users’ interactions with the internet—the so-called web logs, to which reference has already been made—as proposed in the draft communications data Bill. He goes on to say that if such proposals were to be brought forward,

“a detailed operational case needs to be made”,

with a full assessment of the implications for retaining such data being carried out.

One of the key objectives set out in the report for the renewal of legislation on investigatory powers is public trust in the use of such powers by government agencies in order that people should not become disenchanted with the whole business of intelligence gathering. Such disenchantment or disillusion would result in a loss of public confidence in law enforcement and intelligence agencies, which is needed if they are to carry out their work to maximum effect.

I do not know what particular occurrences or issues Mr Anderson had in mind when deciding to make the issue of trust such an important theme in his report. However, for example, within the last two or three weeks there has been a newspaper report claiming that at least 20 rogue mobile phone towers capable of eavesdropping on personal calls had been uncovered around London. The equipment, it was said, was used by the police to target criminal activity but it was asserted that it also collected the data of all other phones in the area, meaning that the public’s privacy could be being routinely invaded. Whether the report was true or not, I cannot say, but while I doubt that anyone would feel it inappropriate to use such equipment to track criminal activity, a problem arises if there is any suspicion, justified or not, that it might be being used rather more extensively. It is, as the Anderson report is entitled, a question of trust.

More recently, we appear to have had a case to which the noble Lord, Lord Strasburger, referred of the Investigatory Powers Tribunal ruling towards the end of last month that an Egyptian NGO had been subject to surveillance by the UK Government with its email communications being intercepted and access to their information being unlawfully retained for longer than the time limit allowed. At the same time, it is claimed that the Investigatory Powers Tribunal made no determination in favour of Amnesty International’s claim that it had been a victim of unlawful surveillance. However, it seems that last week the Investigatory Powers Tribunal ended its ruling, stating that it was in fact Amnesty International, not the Egyptian NGO, that had been subject to this unlawful surveillance activity—the first time it is being said the Investigatory Powers Tribunal has not ruled in favour of the agencies.

Obviously, this matter could raise two issues: first, why an international human rights organisation has apparently been subject to surveillance in the first place; and, secondly, how the Investigatory Powers Tribunal appears to have made the error of mistaking an Egyptian NGO for Amnesty International, and what that could mean for its ability to provide effective oversight. I say this as a serious comment, not a frivolous one: I am not in a position to comment on the rights and wrongs of the case to which I have referred. I simply make the point that if what I have been given to understand is anywhere near accurate it will inevitably raise questions of trust, which is a key theme of David Anderson’s report.

We agree with the view in the Anderson report that the current legal framework is opaque and unsustainable and that the current commissioner system should be overhauled with the creation of a new single commissioner. We also believe that the Government should consider carefully the recommendation made in the Anderson report for consultation with law enforcement agencies and communication service providers to establish the operational case for the retention of web logs.

Our opposition to the draft Communications Data Bill reflected our concerns that it gave the holder of the post of Home Secretary too much power, including the determination of which categories of data communications service providers should be required to retain. Those concerns were shared by the Joint Committee on the draft Bill which considered that the powers outlined in Clause 1 were too wide ranging.

We also agree with the recommendation in the Anderson report that there should be judicial authorisation for interception warrants introduced into the process. Such judicial approval already applies in the United States, Canada, Australia and New Zealand. We would want the Home Secretary to retain her or his role in assessing the nature of threats to national security. On the recommendation that authorisation of warrants by the Secretary of State should be replaced by judicial authorisation, Mr Anderson states that the Home Secretary routinely signs thousands of warrants per year. Most are concerned with serious and organised crime—some two-thirds—and the remainder with national security, principally terrorism.

It seems that in 2014, the Home Secretary, as the noble Lord, Lord King of Bridgwater, said, personally authorised 2,345 interception and property warrants and renewals. My maths is not very good but, as far as I can make out, that amounts to an average of between six and seven a day, seven days a week, 52 weeks a year: a surprising figure, to put it mildly. No doubt the Minister will tell us how that figure compares with previous years. I do not know whether the Home Secretary has time, with all the other responsibilities of that position as well as those of being an MP, to delve into each warrant authorisation sufficiently deeply to ask any necessary challenging questions or to seek further information or clarification. The Minister has already told us that a Home Secretary does have the time—and not spare time, but core time—to do so. Perhaps the fact that the Minister decided that there was a need to try to get his retaliation in first on this point is, in itself, revealing.

In his report, Mr Anderson makes the point that English law has long recognised the need for a judicial warrant for the search of a person’s home. He goes on to ask why the equivalent should not be required to access the information available about a person based on their communications, which may be very intrusive and informative. The independent reviewer’s recommendations include a mechanism for reconciling judicial authorisation with the special expertise of a Secretary of State where defence of the United Kingdom or foreign policy issues are involved.

The Government have said that they are committed to introducing a Bill on investigatory powers early next year, so that it can receive Royal Assent before the sunset clause in the Data Retention and Investigatory Powers Act comes into effect at the end of 2016. Prior to that, a draft Bill will be brought forward for consideration in the autumn and will be subject to full pre-legislative scrutiny, including by a Joint Committee of both Houses. We want strong powers with proper checks and balances and oversight of how the system is to work and is working. However, it is also crucial that our intelligence agencies can counteract the serious and growing threats that people face. That requires an up-to-date legal framework and the protection of our security and liberty. We have to ensure that the issue of public trust raised in Mr Anderson’s report is addressed. If we do not, the effectiveness of our intelligence gathering will be weakened, with potentially very serious consequences for us all.

I conclude by recognising and paying tribute to the dedication and commitment of those who work so hard and diligently to protect us, whether from acts of terrorism or from those for whom acts of vicious and heartless criminal activity are apparently an acceptable way of life. One day after the 10th anniversary of the 7 July 2005 terrorist bombing atrocities in Central London is an appropriate time to restate that it is not good luck and good fortune that protect us from further mass acts of terrorism in the United Kingdom, but the quality, skill and effectiveness of our security, intelligence and law enforcement agencies.