Investigatory Powers Bill (Second sitting)

Peter Kyle Excerpts

Thursday 24th March 2016 Public Bill Committees

[The Chair]

Q77 Welcome to the afternoon session. We will now hear oral evidence from the National Society for the Prevention of Cruelty to Children and Mr Ray McClure. We have half an hour for this session. Could the witnesses briefly introduce themselves?

Alan Wardle: I am Alan Wardle. I am head of policy and public affairs at the NSPCC.

Ray McClure: I am Ray McClure. I am the uncle of Lee Rigby, the fusilier who was brutally murdered on the streets of London. I am the eldest brother of his father.

[Peter Kyle (Hove) (Lab)]

Q Thank you both for appearing today; it is good to see you.

Mr McClure, could I start with you? We have been talking about the prevention of terrorism to date, but from your perspective this is about crime prevention. Perhaps you could say a few words about that and the measures in the Bill that would benefit crime prevention from your perspective.

Ray McClure: The forces of law and order and security need information in order to prevent crime. Surveillance is a necessary part of crime prevention. You go down the high street or go into shops and you are on CCTV cameras all the time. That is surveillance. The public know what it is for: to prevent crime and to gather information in order to prosecute those who are guilty of committing crime.

This whole thing to date is also about making sure that the forces of law and order—the police and the security forces—have the means of gathering the information that they need in order to prevent crime, be it on the internet or terrorism, as well as being able to gather the evidence in order to prosecute people who are guilty of crime.

Modern society works by having rules that are understood and agreed, and by having those rules policed and enforced. Without those rules and laws in place, we are living in anarchy.

[Peter Kyle]

Q Thank you. Mr Wardle, do you want to give the NSPCC’s position?

Alan Wardle: I am happy to. As you would expect, our interest is less to do with the counter-terrorism aspects and more to do with the investigation and prosecution of specific crimes against children. We know, and the Committee will know as well, that the police’s ability to investigate and prosecute some of the high-profile crimes we have seen in recent years—online grooming of children and the number of people who are viewing illegal images of children online, which has grown exponentially— is increasingly dependent on communications data. I think it is vital that this Bill ensures that the police have the powers and capabilities to continue to do that.

[Peter Kyle]

Q So from your perspective—and this is from reading the evidence from the NSPCC—this is not just about collecting data; it is about sharing data and intelligence in a joined-up way between the services. Is that correct?

Alan Wardle: It is about collecting data so that, as and when the police need to investigate, there is a dataset that they can specifically and forensically look into to investigate. So data sharing is part of it, but not all of it. Say a child is being groomed online and you are trying to establish where that child was met by someone who has groomed them. Did they actually meet in real life for contact abuse? In the case of a child being trafficked across the country, was a hotel booked? Was a car booked? It is about being able to piece that information together. So traditional policing methods—being able to use the internet and the data that are available from people’s online activities to identify people and prosecute them—is the main concern, but the sharing of data, where relevant, is also relevant.

[Peter Kyle]

Q We have seen delays of sometimes 12 months in gathering and processing evidence, insufficient training in the collection of digital evidence—all things you have cited in your evidence—and a lack of awareness of the legal processes to access communications data. Bearing those things in mind, the new powers, even if we had them, could not really be used effectively unless there was the right training in the first place.

Alan Wardle: Absolutely. This is not a silver bullet; it is another tool that the police need in their armoury to help them deal with these kinds of crimes. Equally important is that local police forces particularly have the forensic capability to analyse a mobile phone or computer, and the technical tools and skilled officers to be able to do that.

Being able to access the data is one part of it, but not all of it. The kind of tools that we see at the National Crime Agency and the Child Exploitation and Online Protection Centre are very helpful, but the issue is the extent to which that expertise and those technical tools are disseminated throughout the entire police force across the UK. I would argue that communications data was only ever going to be part of the answer—an important part, obviously.

[The Chair]

We clearly have two excellent witnesses here, and I am sure that many colleagues will want to ask questions. Who is trying to catch my eye? Would Mr Matheson like to ask a question?

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[The Chair]

Mr Kyle, a 10-second question and a five-second answer.

[Peter Kyle]

Mr Hoare has just asked my question, so I am a happy man.

[The Chair]

That brings us to the end of this session. May I thank our witnesses, who gave extremely strong performances? I know that being a witness before a Committee is very nerve-wracking, but you both executed your role fantastically, so thank you very much indeed. It was very kind of you to come before us today.

Examination of Witness

Mark Hughes gave evidence.

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[Matt Warman (Boston and Skegness) (Con)]

Q On the Joint Committee on the draft Bill and on the Science and Technology Committee, we heard CSPs talking about the level of engagement they have had from the Home Office, and we have heard from the Home Office that that has increased recently. That seems to tally with what you are saying. Could you give us a sense of the scale and extent of that engagement, and some reassurance that, in this fast-moving world, you are confident that the relationship is such that that engagement would be there in future as well, rather than it just being about getting the Bill to this stage?

Mark Hughes: We have had extensive periods of consultation and meetings on a very frequent basis. The Home Secretary has invited many of us representatives of the CSP community to meetings with her on two occasions before this, as well as to many working-level meetings with various Home Office officials. We discussed the technical, legal and procedural points about the proposed legislation as well, which is markedly different from how things have been before.

On the point about the future, which is important here, the Bill itself clearly specifies and puts in place a regime whereby consultation is enshrined in the legislation through the consultation process that has to happen before a notice is issued and, indeed, because the reconstituted technical advisory board can be called to come together at any time. That power did not exist in the past. The consultation is in a better place and I think that the Bill itself will help to ensure that that continues in future, because it will be a point of law.

[Peter Kyle]

Q Is everything in the Bill technically deliverable?

Mark Hughes: There is nothing that we have yet come across that we think is technically not deliverable. However, I will caveat that by saying that we provide many different services. There are different service providers that do different types of things and operate their communications networks differently from us. I can only really comment on BT and our networks, both mobile and fixed, but from where we are coming from it is—

[Peter Kyle]

Q So through technology that is already in existence and already within your grasp as a company, everything in the Bill is within the bounds of deliverability.

Mark Hughes: What I would say is that, as I said at the beginning, the things in the Bill that we need to retain are what bits we can do technically. We have not yet gone through in detail how we constitute some of that information, because we have not yet done it. I cannot comment on something that we have not done yet, but on the face of it, it does not look unfeasible.

[Peter Kyle]

Q To follow up briefly on Mr Matheson’s question about security, I hear your answer, which is quite broad. I will rephrase the question in this way: would existing BT customers expect a different level of security protection for their data once the Bill is enabled and passed, compared with what they expect and what is at their disposal today?

Mark Hughes: Again, different types of data, depending on the concentration, volume and type of data, require different levels of security. We always assess the risk of that data becoming exposed in a way that it should not, and we assess the security against that clearly.

[Peter Kyle]

Q Are you saying that because the quantity and volume of data being stored will increase and you are storing it for longer, those are two contributing factors that could potentially lead to the weakening of security?

Mark Hughes: No. On the contrary, because that is the case, we will assess it and have to put additional security controls around those data. Again, some of those data sets do not currently exist. In assessing how we would build the storage for those data sets, we would obviously factor in security, and some of the factors would include the volume and type of data, which would lead to the solution that we put in place. That is part of some of the cost estimates that have been worked through in the pamphlet produced by the Home Office.

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[Mr Hayes]

We must all rise to the challenge.

[Peter Kyle]

Q Sir Stanley, in response to Sir Keir’s question, you said that you felt that judges would be compelled to give weight to the person applying. Will judges, considering that it has been signed off by the Home Secretary, feel compelled to give weight to the fact that the Home Secretary has already authorised the warrant?

Sir Stanley Burnton: Well, you give weight to it, but you none the less look at the material to see whether she was entitled to come to the decision she came to.

[Peter Kyle]

Q There is a lot of weight already by the time it gets to the judge to make the decision, so the bar is high for you to overturn the application.

Sir Stanley Burnton: These are serious matters. To authorise or to approve a warrant is a serious matter, but equally not to may be a serious matter.

[Peter Kyle]

Q Thank you so much for a great answer. Joanna, following on from the Minister’s question, have you ever come across a Bill of this complexity, size and importance in your career?

Jo Cavan: No.

[Peter Kyle]

Q So it is unique, and therefore the conditions that lead up to it are unique as well.

Jo Cavan: That is right, although I defer to the individuals in this room who have been involved in this type of stuff for far longer than I have. Six codes of practice containing the operational detail were published on 1 March accompanying the Bill. That is a huge amount of material to examine.

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[Keir Starmer]

Q I know there is no such thing as a typical case because they are all shapes and sizes but, in the main, would you have expected a signed statement from somebody setting out the case for necessity and proportionality—why it was necessary—and drawing your attention to the relevant material?

Lord Reid: Yes. That would be the top introduction, but there may well be further papers behind it. In some cases, there may be papers behind it in some depth.

Charles Clarke: If the question is whether there would normally—I am trying to think whether there is any exception to this—be a recommendation by an official based on the data that existed, the answer is yes. I am trying to think whether there are any exceptions to that. I cannot think of any offhand.

[Peter Kyle]

Q One of the innovations of the Bill is the double lock. When you were Home Secretaries, most warrants would have been signed just by the Home Secretary. Will the knowledge of having judicial oversight and a second authorisation before the warrant comes in change the behaviour of the Home Secretary when approaching the decision?

Charles Clarke: I tend to doubt it. Speaking for myself and, I am sure, for John—actually, for all Home Secretaries I have ever discussed this with—we have all been exceptionally aware of the severity and seriousness of what we were looking at. I do not think that the idea that there was going to be a judicial review of what we were doing would have changed our behaviour significantly. There is quite a serious, in-principle issue about the role of the judge as opposed to the role of the Executive.

I saw you taking evidence from Lord Judge just now. I bumped into him as I was coming in. The question of the relationship between the judiciary and the Executive is a key point. I gave evidence on it to the House of Lords Constitution Committee in 2007 because I think it has all been changed by the Human Rights Act 1998. I think there has been insufficient consideration of the changing nature of the relations. In response to your particular point, Mr Kyle, I do not believe that there would have been a significant change in behaviour.

Lord Reid: I do not think there will be a change in behaviour from the point of view of the person who is ultimately accountable to Parliament for the decisions, which is the elected Member and appointed Minister. Probably even before RIPA, which I think Charles took through the House of Commons, there was an awareness that there were degrees of oversight and you were working within certain constraints and certainly with oversight.

I confess that where I would worry—you would perhaps say, “Well, he would, wouldn’t he? He was the Home Secretary.”—is in case the judicial oversight became a co-decision. I think that is a recipe, in some cases, for obstacles to the efficient operation of aspects that I mentioned earlier, for instance in a hostage situation. I know that allowances are being made for that.

I guess that the additional oversight—judicial oversight—that is in the Bill is a result of a number of factors. One is the concern—I do not know whether it is public concern; I do not think it is, but it is certainly published concern—over the Snowden revelations, the general distrust of politicians and the fact that there was a Liberal-Conservative coalition. All of this is compromise, is it not?

I have no in-principle objections to it, provided that the first decision is made by the person accountable for it, through Parliament, to the public and the role of judicial oversight is the judicial element of it.

[Joanna Cherry]

Q On 4 November last year, when the Home Secretary introduced the draft Investigatory Powers Bill to the House of Commons, she informed us:

“the acquisition of bulk communications data, both relating to the UK and overseas…is not a new power. It will replace the power under Section 94 of the Telecommunications Act 1984”.—[Official Report, 4 November 2015; Vol. 601, c. 971.]

May I start with you, Mr Clarke? When you were Home Secretary, how many times do you recall authorising the use of

“the power under Section 94 of the Telecommunications Act 1984”

to collect the telephone records of everybody in the UK into a single national database?

Charles Clarke: I do not recall the answer to your question at all, I am afraid; I have not prepared for this meeting, or gone back to my files, so I cannot answer the question. I think what the Home Secretary will have been trying to communicate is that the purpose of this legislation is to update legislation in the light of massive technological change, even since 1999, when I took the RIPA Bill through Parliament. As you will recall, that was to make what was being done compliant with the Human Rights Act, which required us to have a basis on which all of this was understood. Previously, this had all been done without any basis, and I was very proud to take that legislation through.

I said at the time—if you go back to the records of those hearings—that it would be necessary to update that Bill as technology moved forward, and I think that is what the Home Secretary meant in what she said. However, I apologise that I cannot give you the precise answer that you are looking for.