Investigatory Powers Bill

Lord Rosser Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Rosser (Lab)]

My Lords, the Investigatory Powers Bill seeks to address an issue that, in theory, is simple and straightforward: namely, the appropriate balance between individual privacy and collective security in the digital age. However, what make it in reality a far from simple and straightforward issue are the very different views on where that appropriate balance lies.

The vote in the referendum last Thursday to leave the European Union has, potentially at least, added to the complexity, since it has raised the question of what the implications of that decision might be for the proposals in the Bill and their effectiveness and relevance, bearing in mind the considerable co-operation with what are still, at this moment in time, our European partners over security and intelligence issues and the European arrest warrant in the fight against terrorism and serious crime. What happens if the present level of co-operation is scaled down? If it were scaled down, would it happen only from the day we left the European Union or would it start to happen earlier?

The resignation of our European commissioner does not suggest that our involvement with and influence in the European Union and European organisations will continue at the present level until the necessary negotiations on our withdrawal have been completed. I ask the Minister to make some meaningful comment on this point when he responds at the end of the debate. This question was not discussed during the passage of this Bill through the House of Commons, but it should be considered, and answers sought, in this House.

As the Minister said, the Bill was the subject of extensive pre-legislative scrutiny, including by a Joint Committee of both Houses chaired by my noble friend Lord Murphy of Torfaen. Prior to the pre-legislative scrutiny, there had been extensive scrutiny of our investigatory powers in three independent reviews, including one by David Anderson QC, the Independent Reviewer of Terrorism Legislation. His review and the other reviews stressed that legislation relating to interception and communications data needed to be consolidated and made subject to clear and robust privacy safeguards. This Bill is also intended to replace the Data Retention and Investigatory Powers Act 2014, which contains a sunset clause requiring new legislation to be passed by the end of this year.

Safety and security matter—a point brought home to us all too painfully just over a week ago when one of our much respected and much admired parliamentary colleagues, Jo Cox MP, was brutally murdered in the street in broad daylight in this country.

The current threat level for terrorism is severe. We have also seen major attacks recently in Paris, Brussels and elsewhere. The Bill, though, covers not only terrorism but other serious crimes such as people trafficking, including the trafficking of children, sexual abuse, stalking and harassment. The security and intelligence services, GCHQ, the National Crime Agency and the police must have the powers to deal with these threats in an age when those involved in terrorism and criminality are operating online with a reach and on a scale that has not existed before through exploiting the technological advances now available for their own ends.

Human rights matter, too, including the right to privacy, the right to be left alone, the right to have private data protected and the right to redress when needed. My noble friend Lady Lawrence of Clarendon, who is in her place, and her family were put under surveillance by the Metropolitan Police with no justification at all. Those whose job it is to protect us, and to whom I do not think we always give sufficient credit and thanks for what they do on our behalf, cannot be expected to carry out their responsibilities with one arm tied behind their back. Equally there have to be effective checks and there has to be public confidence among all sections of our diverse community that the arms of those who protect us are not extending into areas where there is neither the need nor the justification.

Safety and security and human rights are not mutually exclusive. The Bill has completed its passage through the Commons. The Labour Party voted for it at Third Reading in the light of both significant amendments made in the Commons to meet our Labour red lines and in the light of undertakings given by Government Ministers to address further issues of Labour concern during the Bill’s passage through this House. It is now up to the Government to deliver on those verbal undertakings, now on the record in Commons Hansard. They include a commitment to introduce a threshold for access to internet connection records so that the powers cannot be used in investigating minor crimes—which is what the Bill as presently drafted in effect permits.

On Report in the Commons, the Government Minister, in response to our argument for a general serious crime test for communications data and a higher threshold on top of that for the use of internet connection records—but one which would provide that offences such as grooming, harassment and stalking were still covered—said he was committed to doing what we were seeking, and continued:

“I do so because it is really important that we have a threshold that works, particularly on ICRs”.—[Official Report, Commons, 7/6/16; col. 1120.]

A further commitment was made in respect of the protection of journalistic sources. We have already secured amendments to the Bill providing that judicial commissioners, when considering a warrant, must give weight to the overriding public interest in a warrant being granted for the use of investigatory powers against journalists, and that they must ensure that it is in keeping with wider and more general privacy points.

However, there are still matters outstanding on this point, including the extent to which the Bill does or does not provide for the same level of protection for journalists as is currently the case under the Police and Criminal Evidence Act. There is also the question of the definition of who is and who is not a journalist now that we are in the digital world. The Government Minister in the Commons accepted that a solution needed to be found and said:

“I am happy to say that we will look at this issue with him”—

the shadow Home Secretary—

“and others in greater detail as the Bill enjoys its passage through this House and the other place”,—[Official Report, Commons, 7/6/16; col. 1117.]

with the reference to “others” including the National Union of Journalists.

There is also an outstanding issue over legal privilege. The Bill now provides that it is only in exceptional and compelling circumstances that warrants may be issued where one of the purposes is the obtaining of legally privileged communications. Questions about the provisions in the Bill have been raised by the Law Society and the Bar Council, and I understand that the Government are continuing to discuss the concerns raised with the relevant organisations. We will need to know the outcome of the discussions and whether these concerns have been resolved. This is not about preserving the special status of individuals who work in journalism or the legal profession, or indeed as parliamentarians, but about protecting the public and their ability to raise issues through these channels on a secure and confidential basis.

In the Commons, the Government also accepted in principle our amendments relating to appointments to the new Investigatory Powers Commissioner, which would increase the role of the Lord Chief Justice in making recommendations for appointment to the Prime Minister. We will also need to be satisfied that the safeguards around modifications to warrants have been strengthened sufficiently to ensure that major modifications cannot be made by the back door, thus avoiding the provisions laid down in the Bill for obtaining warrants. We are not yet satisfied that this issue has been fully resolved, although we recognise that it is not a straightforward matter and we would be willing to work with the Government on it.

A number of crucial changes to the Bill were secured in the Commons through the approach we, as the Official Opposition, adopted. First, on the powers in the Bill which enable information to be retained in bulk form, the Government accepted our argument that there should be an independent review of the operational case for such powers. These are actually powers which, for the most part, are currently available and being exercised at present, but not on a statutory footing with safeguards. The investigation will be carried out by David Anderson QC, the Independent Reviewer of Terrorism Legislation, and will consider the necessity of the powers and whether the same result could have been achieved through alternative means. He will conclude his work before the relevant clauses in the Bill are reached in this House. This was a fundamental concession as far as we were concerned. While it clearly depends on what conclusions David Anderson reaches, it is quite likely that the findings of his review will prove to be the major issue.

Secondly, we pressed for and achieved an overarching privacy clause in the Bill against which the use of the exceptional powers in the Bill will have to be justified. We believe that it is vital to have this in the Bill so that privacy considerations are at its heart. Thirdly, we secured a provision that makes it clear that legitimate trade union activities are not a sufficient reason for powers under the Bill to be exercised. Fourthly, on judicial oversight of decisions to approve warrants for the exercise of powers under the Bill by the Home Secretary, a judicial commissioner will have to consider necessity and proportionality, and balance that against the overarching privacy clause. The judicial commissioner will not just be scrutinising the process. Fifthly, progress was made on providing protection for whistleblowers when giving information to the Investigatory Powers Commissioner.

The Joint Committee on the draft Bill called for protection for members of the intelligence services who raise concerns about the misuse of investigatory powers with the Investigatory Powers Commissioner. The Bill provides for an individual to be able to give information on a voluntary basis to the commissioner without that individual committing a criminal offence or incurring a civil liability. However, the Solicitor General in the Commons agreed on Report to make it absolutely clear in the Bill that whistleblowers can make disclosures to the IPC without fear of prosecution. The Bill also now provides greater protection over access to medical records, which can be retained and accessed only in “exceptional and compelling circumstances”.

I have not referred to all the changes to the Bill secured in the Commons, or to all the undertakings given by the Government in respect of amendments to the Bill tabled in this House. What has been achieved, though, is an indication that, thanks to the persistence, determination and constructive work of the Official Opposition and others, and the willingness of the Government to listen, there are now much stronger safeguards in the Bill protecting people’s privacy and their human rights than existed in the original Bill or exist under current legislation.

That does not mean that the Bill is perfect—I am sure we will all want to listen to areas of continuing concern that may well be expressed both inside and outside this Chamber as we consider the Bill in detail. Clearly, our position on the Bill has changed since it started its passage through the Commons. We are looking, though, to make further progress during debates on the Bill in this House and, in particular, to hold the Government to the outstanding commitments and undertaking they gave in the Commons and on which the House will expect to be updated as we go through the Bill.