Investigatory Powers Bill (Third sitting)

Simon Hoare Excerpts

Committee Debate: 3rd sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[Joanna Cherry]

I do not recall legislation of such detail and such constitutional significance. I have only been in this House for nine months, but I have followed the operation of this House closely since I was a teenager. This is a massive Bill, and it is its constitutional significance that matters. I chaired an event last night at which the chair of the Bar Council of England and Wales spoke. She raised her concerns about the rush to legislate because of the constitutional significance of the legislation and its implications for the rule of law. The Minister does not embarrass me at all. I wholeheartedly stand by what I say. It is a widely held view, across parties and across society, that there is not sufficient time for the scrutiny of this legislation.

[Simon Hoare (North Dorset) (Con)]

Will the hon. and learned Lady give way?

[Joanna Cherry]

I will make some progress, if I may. I would like to echo the comments of the hon. and learned Member for Holborn and St Pancras about the proper role of the Opposition, which I spoke about on Second Reading. As he said, it is the proper role of the Opposition to robustly challenge the legislation, to push back on it and to probe, hopefully with a view to improving it. That is why my party did not vote the legislation down on Second Reading. We are honestly engaged here in a process of improvement, but if the Government are not prepared to listen to us then we may well vote against the legislation at a later stage.

I echo what the hon. and learned Gentleman said about the failure to amend the draft Bill to deal with the ISC concerns regarding the lack of overarching principles on privacy. I also strongly echo what he said about a request for the Minister to clarify how the Committee is to approach the codes of practice which, as the hon. and learned Gentleman said, this Committee does not have the power to amend, and which contain some enormously important detail. Jo Cavan, the head of the Interception Commissioner’s Office, also drew attention to that in her evidence.

On Second Reading on the Floor of the House, I promised to table radical amendments. The SNP has tabled radical amendments to the part of the Bill we will look at today. We want to ensure that surveillance is targeted, that it is based on reasonable suspicion, and that it is permitted only after a warrant has been issued by a judge rather than by a politician. We want to expand the category of information which will be accessible only by warrant, and to ensure that warrants may not be provided without proper justification. We also want to remove the widely drafted provisions of the Bill that would allow modification of warrants and urgent warrants without any judicial oversight. Those provisions, if they remain in the Bill, will drive a coach and horses through the so-called double-lock protection in the legislation.

We have also laid amendments to ensure a proper and consistent approach to the safeguards afforded to members of the public who correspond with lawyers, parliamentarians and journalists. We want to put a public interest defence into the offence of disclosure of the existence of a warrant. Those are the sort of radical, principled amendments that we believe are required to render parts 1 and 2 of the Bill compliant with international human rights law, bring the Bill into line with practice in other western democracies and meet the concerns of the UN special rapporteur on the right to privacy. We recognise that the security services and the police require adequate powers to fight terrorism and serious crime, but the powers must be shown to be necessary, proportionate and in accordance with law. If the House is not about the rule of law, it is about nothing.

[Simon Hoare]

I am very grateful to the hon. Lady for giving way. I do not agree with her and her party that the Bill is the constitutional earthquake they represent it to be. However, she has just referenced a point that would mean constitutional upheaval, if I heard her correctly—namely, to remove any political input, and therefore democratic accountability, to this House and to elected Members, and to bypass it all to unelected, unaccountable judges, though I mean that in no pejorative sense. To effectively create massive cleavage between democratic accountability and the day-to-day action allowing those things to go ahead would be a constitutional upheaval. Have the hon. and learned Lady and her party colleagues considered that viewpoint in that context?

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[Joanna Cherry]

I am 100% with the hon. and learned Gentleman in his description of the clause. Indeed, many clauses of the Bill require the application of a cold wet towel or a bag of ice to the head followed by copious amounts of alcohol later in the evening.

Amendments 57 and 83 bear my name and that of my hon. Friend the Member for Paisley and Renfrewshire North. I wish to emphasise the importance of those amendments, which foreshadow important amendments in respect of bulk powers that the Scottish National party intends to table at a later stage. Our amendments would apply the same processes and safeguards for the examination of information or material obtained through bulk interception warrants and bulk equipment interference warrants, irrespective of whether the information or material pertains to individuals in the British Isles, and to require a targeted examination warrant to be obtained whenever secondary data obtained through bulk interception warrants and equipment data and information obtained through bulk interference warrants are to be examined.

In order to gain an understanding of the background to this amendment, I invite hon. Members to look back at the evidence of Eric King to the Committee on 24 March. He explained to us how GCHQ examines bulk material. The targeted examination warrant available on the face of the Bill fails to cover the aspect of communication that is most used by agencies such as GCHQ: metadata, or secondary data, as it is referred to in the Bill.

[Simon Hoare]

The hon. and learned Lady might have chosen a better witness. If I recall, the gentleman in question admitted in answer to my hon. Friend the Member for Louth and Horncastle that he had had no experience at all in the application for or determination of any warrants. He had never had any security clearance either, so I am uncertain why he is being prayed in aid.

[Joanna Cherry]

I must say that I do not like the approach of traducing witnesses. If I do not like a witness’s evidence, I will not traduce them; I will just try to forensically dissect their evidence. This is a distinguished witness with significant experience in this field.

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[Joanna Cherry]

No, I will not give way. There will be plenty of opportunity for the hon. Lady to contribute later. I am conscious of the time, Chair, so I will briefly—

[Simon Hoare]

Will the hon. and learned Lady give way on that point?