Investigatory Powers Bill (Fourth sitting)

Simon Hoare Excerpts

Committee Debate: 4th sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[Simon Hoare (North Dorset) (Con)]

May I put a slightly counter idea to the hon. and learned Gentleman and the hon. and learned Member for Edinburgh South West? I accept the comments of David Anderson and others, but in some instances it will not be terribly wrong to have broad definitions in the Bill. Getting legislation made in this place is a difficult and lengthy process. We must fetter those who wish this country and its citizens ill, so it is potentially a good idea to have some breadth in the definitions.

[Keir Starmer]

I understand the spirit underpinning the hon. Gentleman’s intervention, which is that in certain circumstances a broad power can be helpful because future situations are not known. In this case, the breadth of the provision matters above all else, however, because it concerns the subject matter of the warrant. Lest anyone think otherwise, when one looks at the code of practice, one does not find that it restricts what is in the Bill. Paragraph 5.12 of the draft code says, in stark terms:

“There is not a limit to the number of locations, persons or organisations that can be provided for by a thematic warrant.”

In certain circumstances, the Minister and the Government might be able to point to things that are broad in the Bill but restricted by the code, but that would not be appropriate for the subject matter of a warrant and is not the situation in this case. I am grateful to the hon. Gentleman for the intervention, however, because I need to put my concern on the table, and I invite the Government to take the matter away and have another look at it.

I am concerned that in reality, the broadly drawn warrants will be modified. We will get to the modification procedures later. The broad warrant will be signed off by the Secretary of State and the judicial commissioner, but the modification, which may well add names as they become available, will not. There is therefore the further hidden danger that the provision is so broad that it will require modification procedures to be used more often than they should, in circumstances in which they are not adequate, for reasons that I will come on to.

At the end of the day, if someone with the authority and experience of Lord Judge, Sir Stanley Burnton and David Anderson—who have more authority and experience than anyone in this room—says that they have concerns about the breadth of the warrants, for the Government simply to say, “We’re not going to have another look at it”, runs counter to the spirit in which they have so far approached the scrutiny of the Bill.

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[Mr Hayes]

Absolutely, thus the double lock. I am proud to be an elected person. I do not share the doubt-fuelled, guilt-ridden bourgeois liberal hesitation about decision making that has emasculated so much of the political class.

[Simon Hoare]

I thought my right hon. Friend was about to give a tinker’s cuss, but obviously he refrained from doing so. I think he will agree that the main difference between the two Front Benches is the point made by the hon. Member for City of Chester in an earlier intervention. If the first duty of Government is the protection of the realm and Government can send troops on to our streets and into foreign battlefields and so on, suddenly passing any responsibility for or involvement in the granting of these warrants off to unaccountable judges would be an abdication.

[Mr Hayes]

I do take that view. The hon. Member for City of Chester did not explicitly articulate, but implied that there needed to be a balance between refusing to abdicate that duty, and indeed affirming it, alongside the affirmation of representative Government that I have already made, and taking into account the significance—as the hon. and learned Member for Holborn and St Pancras argued, David Anderson made this point clearly in his report—of judicial involvement, not least as a means of reinforcing the system. As he very honestly said, part of David Anderson’s consideration was whether we could make what we do stand up to challenge, and having a judicial involvement through the double lock is a way of creating a system that is more robust and resistant to challenge: a system that people can have greater faith in, in that respect.

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[Simon Hoare]

In opening, let me address what I detect is the elephant in the Committee Room, as amplified by the amendment as it was. As I made clear in the July 2015 debate on the Anderson report and on Second Reading, I am not a lawyer, so I view the proposal through the narrow prism of the man on the Clapham omnibus, for want of a better phrase: a practical proposal to try to keep my constituents and others as safe as the Government possibly can. I do not view it through the perfectly proper prism of trained legal eyes and I would not be able to do that.

Coming to the breadth point that the hon. and learned Lady who speaks for the SNP has been making, it is clear to me that, from a legal point of view or from a lawyer’s point of view, the narrower, tighter and more prescriptive the language in statute, the better. It narrows, eliminates, eradicates or whatever the opportunity for a wider debate about the interpretation of this or that word, almost like Coolidge, whose immediate response when told that a senator who had always opposed him had died, was: “I wonder what he meant by that.” I think we should be rather careful. I make no apology for viewing this as just an ordinary guy—a father, a husband, a constituent and a Member of Parliament—who believes it is my duty to support any Government of the day who are seeking to keep our country safe.

[Joanna Cherry]

Does the hon. Gentleman also accept that, as Members of Parliament, we have a duty to protect our constituents’ civil liberties and privacy? Lawyers look for narrow definitions and certainty not for their pleasure, but to protect their clients. The reason why Members of Parliament should look for narrow definitions and certainties is to protect their constituents.

[Simon Hoare]

Up to a point, Lord Copper. I find myself in broad agreement with the hon. Member for City of Chester. Likewise, I could not give a tinker’s cuss about most of these things as long as I can look a constituent in the eye were something horrible to happen on the streets of Shaftesbury, Blandford Forum, Gillingham or any of the villages in my constituency. They might look at me and say, “Mr Hoare, are you convinced that you supported everything you possibly could to avoid this atrocity?” I would prefer to say, “Yes, I did.” If it impinged upon or offended against the virgo intacta of civil liberties as a sort of purist academic—I use that word not in an abusive way—definition, I would side with the security argument at every step and turn.

I am not using that as the Luddite argument that someone who has done nothing wrong has nothing to be afraid of. It is absolutely right that to govern is to choose. It straddles that often imperceptible divide between the application of the rule of law and discharging the first duty of the state—to keep the realm safe—and preserving the sacred and long-cherished liberties and freedoms that we all enjoy.

I accept what the hon. and learned Lady says on that point, but it is not just Liberty and Amnesty and other organisations that have access to legal counsel. It is not that the statue, as it emerges through all our processes, would be available only to us and the good guys. It would be available to those who wish us well, but I am going to hazard a guess that one or two of those who wish this country ill—whether in terms of national security, serious crime or acting in an injurious way to our economic wellbeing—may just have recourse to a legally trained brain or two themselves. They, too, would be able to say, “Ah, we’ll do it that way”, because the Home Secretary, the Foreign Secretary, the Secretary of State for Northern Ireland or the Defence Secretary would be so hogtied by the narrow definitions contained in the statute of the Bill, because people sought to stand—this is a phrase I used on Second Reading—like vestal virgins, defending the flame of civil liberty, because that is the flame that must be defended above all others and national security must be secondary to it. That is a perfectly acceptable and reasonable position to take, but it is one with which I profoundly disagree. It offends everything that motivates me as a politician.

We need to be very careful about having, either in the proposed amendments or during the progress of the Bill in Committee and on Report, an obsessive regard to trying to narrow down our language. Providing that the double lock with the judicial oversight remains for all circumstances whereby these warrants and other facilities can be granted—as long as that judicial view is there—that would seem to be in order to secure the provision for the short, medium and longer term, so that we do not have to come back through the legislative process to continually update the narrow language in the Bill to reflect circumstances or address scenarios that, without sounding too much like Donald Rumsfeld, in 2016, we did not think existed or could exist.

It is not from some sort of bovine, recidivist, reactionary, “We are the law and order side of the Tory party” sentiment that I find this quest for the narrowing down of our language to be wrong. It would fetter and constrain the decisions of Ministers and those who, on a daily basis, put their lives at risk under the rule of law to keep us safe. I shall be opposing this set of amendments, just as I will any other amendment, not because my Front Bencher or my Whip advises me to, but merely because I think that there is nothing intrinsically wrong—this is the non-lawyer’s approach—in having broad definitions that provide accountable scope to those who take the decision, so that they are able to take those decisions in response to circumstances as they arise.

[Christian Matheson]

There has been the requisite level of jousting and debate, and sometimes temperatures have risen a little bit, but I have found Ministers at least prepared to justify their arguments and to listen to other arguments. I say that, importantly, because this clause and the amendments are of profound importance to me and to many Opposition Members. I have absolutely no doubt that there are occasions when attacks on the United Kingdom can be carried out on an economic, rather than a military or criminal, basis. Let us consider a hypothetical example of a country that is adept at undertaking cybercrime against the London stock exchange to manipulate stock market activity or shares, or to bring the stock exchange down. That, of course, would have a serious effect on the operation of the City of London. I accept that that can happen.

The hon. and learned Member for Edinburgh South West talked about criminal activity. I have no doubt that the activity in the scenario I described would be considered criminal activity, but when my good friend the hon. Member for North Dorset talked about the elephant in the room, I thought he was going to mention the real elephant in the room and he did not. The real elephant in the room, certainly for me, is that, on such a broad definition of economic activity, the activities of trade unions in the United Kingdom could be brought under the scope of the Bill. I ask Members not to try to intervene to correct me because unfortunately that is the case. That is the real elephant in the room.

I do not believe that Ministers today do not consider trade unions to be an important and relevant part of civil society, but on Second Reading my right hon. Friend the Member for Leigh (Andy Burnham) gave the example of the Shrewsbury pickets, whose case was examined by the Secret Intelligence Service, and made the point that their convictions still stand. Indeed, there are right hon. and hon. Members of this House today who were right hon. or hon. Members of the House or indeed the Government in the 1980s when trade unions were seen as “the enemy within” and banned from representing members at GCHQ because it was considered that trade union membership and activity was incompatible with a commitment to international security, which is a position that is as absurd as it is downright insulting. I genuinely believe that Government Members have moved on from that positon.

Government Members may well wish to point to subsection (4), which suggests that:

“A warrant may be considered necessary as mentioned...only if the information which it is considered necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.”

They may feel that that gives sufficient protection. I must say that, in my experience, unfortunately it does not.

At this point I remind the Committee that I am a member of the GMB and Unite trade unions and I was formerly a senior official with Unite. That experience gives me insight that I wonder whether Ministers and Government Members, through no fault of their own, do not have. My plea is that they bear in mind that our economy is a globalised one, employers and industries are globalising and, in response, trade unions have had to do the same. Trade unions will gather together in bilateral agreements or bilateral alliances. In the UK, they may well join international trade union organisations such as the IMF—I should point out that that is the International Metalworkers Federation rather than any large economic body—or, as I did, they may well form a globalised trade union with other trade unions so that they meet globalised employers on the same basis and cannot be picked off, one against the other.

In the past, for example—this was quite a regular occurrence—I found myself in Canada on negotiations with mining and mineral extraction employers based in Brazil, working with trade unions from outside the UK. There were disputes with British Airways, which at the time was incorporated through International Airlines Group in Spain, and I found myself in Bangladesh working with the Bangladeshi trade unions that we were trying to form to help them develop trade union strength against the exploitation of shipbreakers. Globalised trade unions pursuing genuine avenues of trade disputes with globalised employers are a modern-day reality.

When the hon. Member for North Dorset talked about the elephant in the room, I thought he was going to mention the great fears that Opposition Members have that trade union membership could be seen as damaging to the nation’s economic wellbeing. If we seek to amend the clause to give the greater clarity that I understand Government Members do not wish to see, it is for good reasons of bitter experience—reasons that Ministers are perhaps not aware of, because of their own personal experience.

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[The Solicitor General]

I entirely agree with my hon. Friend. It would not be right for me to make an easy draw-across to the TPIM regime. The hon. and learned Member for Holborn and St Pancras has experience of TPIMs, and I was on the Bill Committee that passed the TPIM law back in 2011, so I have a keen interest in the evolution from what were control orders to TPIMs. The point is staring us all in the face: myriad different circumstances will confront judicial commissioners. It would be too easy for the Committee to come to a conclusion that, somehow, we should create an artificially hard and fast set of criteria that would prevent the judicial commissioners from exercising their duties when considering the varying scale and nature of the applications that they will receive.

[Simon Hoare]

My understanding of what the Solicitor General is saying—perhaps he will confirm this—and my reading of the Bill is that the bar is being set a lot higher than the hon. and learned Member for Edinburgh South West seems to imply. The onus in the first instance will be on those who will be making the case for the warrant. The Home Secretary, for example, will then review it to see whether it passes the tests in the Act and will do so, as will the author of the case before the Minister, in the knowledge that they will be, for want of a better phrase, peer reviewed by a commissioner. Therefore, the review of the review of the review is almost a triple lock of the case made by the authority seeking the warrant.

[The Solicitor General]

That is an interesting way of putting it. I want to make it clear that the review is on an appeal. There is a danger that we will end up mistakenly looking at some sort of a de novo application entirely on its merits, not an appeal. There are other mechanisms by which this matter could be taken further up. At this stage, it is part and parcel of the decision being made. That is an important point of clarification.