Investigatory Powers Bill

Simon Hoare Excerpts

Tuesday 15th March 2016 Commons Chamber

[Mrs May]

I know that that issue was raised when the draft Data Communications Bill was considered and has been raised in relation to the internet connection records power in this Bill, but such a separation is absolutely possible. We have talked at length with companies about being able to separate, for internet connection records, the websites that a particular device has accessed from the content of whatever has been looked at. It is very important for me to make it clear that when we talk about ICRs, we are talking not about looking at people’s web-browsing history, but about looking simply at the initial point of contact.

In relation to the authorisation process, which we have discussed in relation to the questions asked by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), I welcome the Joint Committee’s clear endorsement of the double lock regime and, specifically, the language of the Bill on that point. Right hon. and hon. Members who think that the senior judiciary will simply rubber-stamp Government decisions have clearly never dealt with British judges.

In the case of urgent warrants, the provisions have been tightened in response to the pre-legislative scrutiny.

[Simon Hoare (North Dorset) (Con)]

Will my right hon. Friend give way?

[Mrs May]

I will make a little more progress, but my hon. Friend may be able to catch my eye later.

In truly urgent circumstances, such as a fast- moving kidnap investigation, a warrant can still come into force as soon as the Secretary of State has authorised it, but that decision will need to be approved by a judicial commissioner within three working days. If the commissioner disagrees with the Secretary of State’s decision, the commissioner can order that all material gathered under the urgent warrant must be destroyed.

Furthermore, the Bill provides considerable additional safeguards for the communications of parliamentarians and lawyers. In any case, where it is proposed to intercept a parliamentarian’s communications, the Prime Minister would also be consulted, in line with the Wilson doctrine. Equally, the deliberate interception of legally privileged communications can be authorised only in exceptional and compelling circumstances, such as where it is necessary to prevent the loss of life.

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[Mrs May]

I heard my hon. Friend’s earlier exchange with you, Mr Speaker. Two important extra safeguards have been put in this legislation: the first, which is stated in the Bill, is that the Prime Minister will be consulted, but there is also the double lock authorisation. In future, a warrant to intercept anybody—including Members of Parliament, should that be the case—will be subject not just to the determination of a democratically elected individual, but to the independent decision of the judiciary, through the judicial commissioners. That important safeguard has been put into the Bill.

[Simon Hoare]

The Home Secretary is right to point to the patchy relationship between the judiciary and Governments of all colours. I think the Bill strikes absolutely the right balance. It is absolutely imperative that somebody who is democratically accountable both to this House and to the country has almost the first say on whether such things are done. It is perfectly right for a properly trained judge to have an overview of the process, but it would have been a retrograde step to lose the democratic accountability and the link to decision making in this place.

[Mrs May]

I thank my hon. Friend for his comments. It is important that we have the balance right. Many people have said, “Just have judicial authorisation”, and some people still believe that the authorisation should be made by the Secretary of State. By having both, we do not lose democratic accountability, but we add the independent judicial authorisation.

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[Andy Burnham]

I will not be joining the hon. Gentleman in the Lobby tonight, because I do not believe, as I will come on to explain, that the Bill is acceptable in its current form. As he will have heard me say in my opening remarks, I am in broad agreement with the Government’s objectives. I am not seeking to play politics with the Bill or to drag it down. I hope he will find some assurance in those words.

[Simon Hoare]

The right hon. Gentleman’s position, I am afraid, does not sound particularly persuasive or tenable, certainly to those outside this place. I just wonder what message it sends from his party, supposedly a Government in waiting. Instead of trying to thrash out the detail in Committee and on Report, by abstaining this evening the message will be very clear about what the Labour party actually thinks on this important issue.

[Andy Burnham]

I disagree entirely. As I said, we will not oppose the Bill because we will be responsible. I have recognised that the country needs a new law. I have also said, as I will come on to explain, that the Bill is not yet worthy of support. There are significant weaknesses in the Bill. I am sorry, but I am not prepared to go through the Lobby tonight and give the hon. Gentleman and his Government a blank cheque. I want to hold the Government to account. I want to see changes in the Bill to strengthen the Bill. When they listen, they will earn our support. That is entirely appropriate and responsible for an Opposition party to do.

The higher the consensus we can establish behind the Bill, the more we will create the right climate in the country for its introduction. As the Home Secretary said, it could create a template to be copied around the world, advancing the cause of human rights in the 21st century. The prize is great and that is why I am asking those on the Opposition Benches to work constructively towards it.

I repeat today that I do not think our mission is helped by misrepresentation. In my view, it is lazy to label the Bill as a snoopers charter or a plan for mass surveillance. In fact, it is worse than lazy: it is insulting to people who work in the police and in the security services. It implies that they choose to do the jobs they do because they are busybodies who like to spy on the public, rather than serve the public. I do not accept that characterisation of those people. It is unfair and it diminishes the difficult work they do to keep us safe.

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[Simon Hoare]

Will the hon. and learned Lady give way?

[Joanna Cherry]

I hope the hon. Gentleman will not mind if I make some progress for the time being and possibly give way later. I mentioned the letter to The Guardian. I am conscious that the right hon. and learned Member for Beaconsfield (Mr Grieve), the former Attorney General, has expressed his view on the matter. I would always accord that the respect it deserves, but I respectfully disagree with him. The letter to The Guardian from the lawyers today was focused initially on the problem of bulk intercept. Even the Interception of Communications Commissioner’s Office, the independent watchdog, has said that bulk intercept provides “generalised initial interception”, and that is the issue here—it is the generality, and the lack of focus and specificity, that the lawyers are worried about.

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[Anne McLaughlin (Glasgow North East) (SNP)]

As Members have heard, on the three main aims of the Bill, the SNP agrees with the Government. Laudable as those aims are, however, they are certainly not always in concert with the effects of the Bill. In the words of the Internet Services Providers Association, ISPA—not to be confused with the Independent Parliamentary Standards Authority, IPSA—

“there is a disconnect between what can be found on the face of the Bill and what the Government says the Bill will be used for. Given that the Bill is highly intrusive, the Government must put all of its intentions for how it plans to use the powers on to the face of the Bill. Reliance on speeches and…documents, such as codes of practice, to make clear what the Bill explicitly intends is unsatisfactory.”

The SNP and I have a number of other concerns, as my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) so eloquently laid out. As the SNP’s civil liberties spokesperson, I have received a large volume of emails on the matter. I want to focus on the concerns most frequently raised with me by civil liberties campaigners and my constituents. Time is very tight, so I have to chop my speech to pieces. I will try to be specific and to speak even more quickly than I am doing now.

One concern is that the Bill legalises practices that have been introduced without any parliamentary scrutiny, and it uses the fact that they are already happening as some kind of justification for their efficacy, legality or morality. We should be wary of legitimising steps taken by state agencies without our knowledge or consent, before we have had a full debate on whether we consent to those powers. I refer, of course, to the bulk powers in the Bill. It is not good enough to say, “We have not had any major disasters so far.” That is the cowboy builder’s approach to our liberties. It is equivalent to saying, “Keep your fingers crossed and hope that the roof does not cave in,” and it is not good enough.

Like many civil liberties campaigners, I appreciate the fact that targeted interception with appropriate oversight plays a vital role in keeping our constituents safe. Nobody has a monopoly on that—we all want to be safe, and we all want to feel safe—but the key issue is targeting. The majority of the case studies that were provided, and experience of terrorist attacks elsewhere, show that, by and large, individuals involved in such attacks attract attention from the authorities in advance of the attacks.

[Simon Hoare]

Will the hon. Lady give way?

[Anne McLaughlin]

I am speaking as fast as I can; I cannot possibly give way. I am very sorry.

Such leads must be followed up in a targeted manner, and we must protect our much valued civil liberties and the freedoms for which, so we are told, Britain is famed.

I find it disturbing and somewhat frightening that the Home Secretary has refused to accept the recommendation, by one of the three parliamentary Committees that have detailed their concerns, to exclude from the Bill the use of surveillance powers for the economic wellbeing of the UK. From the passion and determination with which British politicians of all hues fought to keep Scotland in the UK, and if we accept, as I do, that they did so not just for Scotland’s own good, it is clear that they believed that our independence would have an adverse impact on the UK economy. Notwithstanding the fact that I do not necessarily agree with that premise, I am interested to know whether all independence campaigners are vulnerable under this legislation.

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[Steve Brine (Winchester) (Con)]

My thoughts on this legislation can best be summed up in three ways: first, it is about time; secondly, it is very much a Bill of our time; and thirdly, I of course wish it was not needed at all. The measures contained in the Bill should have been on the statute book in the previous Parliament, of which I was a Member, but history records why they were not.

I say it is a Bill of our time. Sadly, the bad guys have always wanted to do us harm. In the internet age, it of course gets harder to deal with them—it requires us as a society to ask ourselves even tougher questions about the compromises required—but that does not mean we can bury our heads in the sand. Whether or not this Parliament acts, the world will continue to be a dangerous place and our many enemies will continue to use the very latest technology to try to get at us. We cannot stop the world because we want to get off.

It seems to me that the opponents of the Bill break in one of two ways, or perhaps both—that we have rushed to get to this point, and that insufficient safeguards are in place for the powers granted. As a youngish researcher, I worked on the Regulation of Investigatory Powers Bill 16 years ago. I remember the claims that it was rushed, was not needed and, above all, would usher in some Orwellian nightmare. I did not believe that then, and I do not believe it now. The intention to bring forward this legislation was set out clearly in our successful manifesto last year.

[Simon Hoare]

My hon. Friend makes the very important point that this legislation was in our manifesto. Given the slightly academic approach to law enforcement taken by our friends in the other place, does he share my hope that, because the Bill is a manifesto commitment, they will not seek to hold it up, given its urgency?

[Steve Brine]

I think the other place will enjoy being described as taking an academic approach. Yes, this very clear security measure was in our manifesto, and I think that message will clearly go along the corridor.

As the Home Secretary said, the Bill follows no fewer than three reports, published last year, which concluded that the law in this area was not fit for purpose and needed reform. We have heard much about the Anderson report today. We have had the ISC report and we have heard from its Chairman, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). We have also had the RUSI independent surveillance review. Further to all that, the draft Bill was subject to pre-legislative scrutiny by three parliamentary Committees, which made some 86 recommendations about how it might be improved.

As we have heard, the Government have accepted many of the recommendations. There has also been a general election. I know that the Minister for Security and his team have done a huge body of work in bringing the proposals—Bill-ready, as they now are—before the House today, so I think it is some stretch to say that the measures have been rushed before us. Furthermore, I think our constituents should be reassured that, after all of that, we have a better Bill. It has been stress-tested by all the work I have mentioned, and we have the lengthy process of parliamentary scrutiny ahead of us.

The Government say that the only new capability provided for in the Bill is the ability to require retention of internet connection records. That is certainly the area that has most caught the media’s attention. Oversight for the operation of the surveillance powers in the Bill is also reformed compared with the legislation—RIPA—that it supersedes. The new double lock means that, for the first time, the commissioners will bring an element of judicial oversight to the process of issuing warrants. I am happy with that, but I want to hear more from the Government about the practicalities of those oversight arrangements, and to be sure that the judicial commissioner will not merely look at the decision-making process that a Minister has gone through, thereby undermining the significance of the authorisation procedure.

I have no issue with Britain’s spy agencies and those parts of the police that investigate serious crime having these powers. I think that they have earned the right to be trusted, and I take the Home Secretary at her word when she says that they have foiled serious terrorist plots in the UK since November 2014. I do, however, have concerns that these powers will end up also being used for trivial purposes by those in our town halls and local constabularies who may think that they are in an episode of “Spooks”. I know that that is not the intention of the Bill, which seeks to keep us safe and equip the spooks to do their job in the 21st century—as I am sure the Minister will reiterate when he winds up the debate—but I do not want this Bill to become its own public relations disaster due to a mission creep that was never intended in its drafting.

Time is short, so in conclusion, there will always be strong emotions about a Bill such as this. Some will believe that we are presiding over an increasingly all-seeing state that reaches into our lives too much, and others will think that these measures do not go far enough. Many of our constituents will take the view that, if someone has nothing to hide, they have nothing to fear, and I have some sympathy with that. The truth is probably somewhere in between. As I said at the start of my remarks, I wish that a Bill such as this were not necessary, but it is, and a wealth of evidence suggests that the law in this area needs urgent revision. The bottom line is that we as a society give something away in return for our freedom, safety and security. That is a choice we make as an elected House of Commons and as elected representatives. There is always a compromise between liberty and security. It is unhelpful to present this issue as being all one way or all the other way. On balance, having looked at the evidence, read the Bill and talked to Ministers, I think that it contains the right combination of measures, and I will support it tonight.

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[Simon Hoare (North Dorset) (Con)]

I support the Bill, having not had the privilege of ever being a lawyer. Occasionally, that is quite useful as it brings an element of common sense to the debate. I support the Bill because I believe it is balanced, proportionate and needed. It has a subtle nuance of equilibrium between the rights and the powers, between the state and the law enforcement agencies and the rights of individuals. I say that not because of any ovine tendency, but because I happen to believe that it is true.

We have listened this afternoon to the Opposition parties in glorious abstention. Their absence from most of the debate underscores the lack of seriousness with which they take national security. They have sat slightly like the vestal virgins, positioning themselves as the guardians of the flame of some cherished civil liberty, often dancing on the head of a legal pin, where this test has not quite been met or that hurdle has not quite been covered. We will wait and see what happens on Report.

I speak as a father, a husband, a son—somebody, I hope, with common sense, who believes that at the heart of the Bill is the Government’s sincere intention to deliver what they were elected to do—that is, to strive and to put in place mechanisms to defeat and frustrate terrorism, to protect our children and our young people, to try to address the problems of drug and people trafficking. Listening to the Labour Opposition, in years gone by, they probably would have complained that the magi had been intercepted and that Herod was allowed the slaughter of the first-born as a result.

[Nusrat Ghani]

Perhaps we should reflect on the view of experts. When David Anderson gave evidence to the Home Affairs Committee, on which I have the privilege to sit, he said, “My view is that if the police and the intelligence agencies can prove that they need those powers to do their job of keeping us safe, then the powers need to be there.”

[Simon Hoare]

My hon. Friend is right. Those of us who took part last summer in the debate on the Anderson report, which was a very thoughtful cross-party debate, would have drawn a huge amount of comfort from what David Anderson said.

The Home Secretary and the Foreign Secretary have come to the right conclusion with the dual lock, a judge and specially trained commissioners. Their training, experience and understanding of the issues will need to be demonstrated so that the House and the public can have confidence in their judgment. It is crucial that Ministers of the Crown, accountable to this place and the electorate, will take those decisions and then be peer-reviewed by the judiciary.

The business of government, as we all know, can often be difficult, and we have people doing good work in difficult circumstances in our name. I am convinced that they do it to the highest of standards and to the zenith of professional integrity, but with the sole focus which is underscored in every line of the Bill—that the first duty of Government is the security of the realm. The nation at last should know that the Government take that seriously. The glorious principle but fairly impotent abstentions of the Opposition parties speak volumes.

[Several hon. Members rose—]

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[Suella Fernandes (Fareham) (Con)]

I am not sure what the collective noun is for lawyers.

[Simon Hoare]

A pain.