Investigatory Powers Bill (Tenth sitting)

Simon Hoare Excerpts

Committee Debate: 10th sitting: House of Commons
Thursday 21st April 2016 Public Bill Committees

[Joanna Cherry]

The hon. and learned Lady makes a good point. David Anderson acknowledges the efficacy of the powers and has been privy to certain information as he has a high security clearance. Not all of us can be privy to that information. I am suggesting that there should be an independent evidence base for the bulk powers. That would involve independent assessors with high security clearance undertaking forensic examination of the necessity and effectiveness of the bulk programmes.

We know, because the Home Secretary has told us—there was an interesting article about this in The Guardian today—that the bulk powers have been running for a long time. The headline of the article is, “UK spy agencies have collected bulk personal data since 1990s, files show”.

I will come back to that article in a moment, but we know that the bulk powers are operational. Given that they have been running for a while, a full list of cases where they have been required should be easy to provide. That should not be to this Committee, but to an independent review staffed by high-level individuals with the highest security clearance—the sort that David Anderson has. I have in mind such people as retired judges and retired professionals with an interest in the area.

[Simon Hoare (North Dorset) (Con)]

I do not want to paint this too simplistically—the purpose of the Bill, as I understand it, is to pull together a lot of existing things under one statute—but we all have fire insurance policies on our homes. We do not want to claim on those policies, but it is important to know that they are there in case we need them in an emergency. That is exactly what all these powers are there for. We need to ensure that the kit is there for our agents to use to keep us safe.

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[Joanna Cherry]

With all due respect, hon. Members sitting behind the Minister brought up David Anderson; I made it clear that I accepted that David Anderson had reached a different view from mine on bulk powers, but I read from his report to make the point that at an early stage in it, he says that it is not his objective to give a legal opinion on the legality of the bulk collection of data.

Those of us who sat through David Anderson’s evidence in Committee on 24 March might also remember that he discussed the different views held about the legality of bulk powers. He said that, ultimately, that will be determined by the courts. The thrust of my argument is that given the serious concerns expressed by two independent United States committees, and the serious concerns about the legality of the powers, we should not be gung-ho about putting them in legislation until we have a proper operational case and have seen the outcome of the litigation. That is a thoroughly respectable approach to part 6, and one that is in accordance with the rule of law.

[Simon Hoare]

I am not persuaded by the argument that the United Kingdom Parliament should make United Kingdom law based on what some Americans whom we have never met or spoken to have said. The first duty of Her Majesty’s Government and of parliamentarians is surely to help keep our citizens and constituents safe. If we take that as our first point of principle and duty, and if the powers that are to be enshrined in the Act can fulfil that need, either now or in future, I fail to see why the proposals would cause such offence.

[Joanna Cherry]

I am glad to hear that the hon. Gentleman does not want the Americans to tell the British how to run their affairs. In very much the same way, I do not want the British establishment to tell Scotland how to run its affairs. We can have that argument another day—

[Joanna Cherry]

I think the hon. Gentleman will find that the argument is alive and kicking north of the border, but we digress.

I can reassure the hon. Member for North Dorset that I have no intention of following the United States of America’s security policy. We should devise our own policy in the United Kingdom, so long as it remains the United Kingdom. I am saying that we should set up an independent review body, made up of people from the United Kingdom—not the Americans or French; let us not panic about the French or the Americans telling us what to do. I am suggesting that our own people, if I may use that phrase, should be on the body. I mentioned the American experience to show that our key ally in such matters has, as a result of two very high-level congressional committees, reached the view that bulk powers are not justified. That is my point; it is not that we should do what the Americans tell us to do. I can assure the Committee that that is far from being the position of the Scottish National party. My point is that we should look to the experience in other countries to inform our decision making.

[Simon Hoare]

The hon. and learned Lady is being customarily generous with her time, and robust in her argument. I do not envy her her position one jot or tittle. If she were saying—without saying it—that she had a fear that spooks out there were doing nasty and horrible things, and that it was our job to try to constrain them, I could understand some of the line of her argument, but I do not think she is saying that. I am therefore not entirely sure, in practical politics, what would be added by the creation of the body she advocates. I am confident that we have security services and others who act within the rule of the law.

[Joanna Cherry]

I am afraid that the hon. Gentleman’s confidence is somewhat misplaced, given the revelations today in a collection of more than 100 memorandums, forms and policy papers obtained in the course of a legal challenge on the lawfulness of surveillance. An article in The Guardian today says that the papers demonstrate that the collection of bulk data in the United Kingdom

“has been going on for longer than previously disclosed while public knowledge of the process was suppressed for more than 15 years.”

According to the article, The Guardian has surveyed the paperwork, which shows that the

“frequency of warnings to intelligence agency staff about the dangers of trespassing on private records is at odds with ministers’ repeated public reassurances that only terrorists and serious criminals are having their personal details compromised…For example, a newsletter circulated in September 2011 by the Secret Intelligence Agency (SIS), better known as MI6, cautioned against staff misuse.”

That internal newsletter said:

“We’ve seen a few instances recently of individuals crossing the line with their database use…looking up addresses in order to send birthday cards, checking passport details to organise personal travel, checking details of family members for personal convenience”.

The internal memo goes on to say:

“Another area of concern is the use of the database as a ‘convenient way’ to check the personal details of colleagues when filling out service forms on their behalf. Please remember that every search has the potential to invade the privacy of individuals, including individuals who are not the main subject of your search, so please make sure you always have a business need to conduct that search and that the search is proportionate to the level of intrusion involved.”

It adds that, where possible, it is better to use “less intrusive” means.

The papers also reveal that there has been disciplinary action. The article states:

“Between 2014 and 2016, two MI5 and three MI6 officers were disciplined for mishandling bulk personal data. Last year, it was reported that a member of GCHQ’s staff had been sacked for making unauthorised searches…The papers show that data handling errors remain a problem. Government lawyers have admitted in responses to Privacy International that between 1 June 2014 and 9 February this year, ‘47 instances of non-compliance either with the MI5 closed section 94 handling arrangements or internal guidance or the communications data code of practice were detected.’ Four errors involved ‘necessity and proportionality’ issues; 43 related to mistransposed digits and material that did not relate to the subject of investigation, or duplicated requests…Another MI5 file notes that datasets ‘contain personal data about individuals, the majority of whom are unlikely to be of intelligence or security interest’.”

I quote that article because it shows that the security services themselves admit that there is sometimes internal breaking of the rules. We should not scoff; these are the personal data of our constituents. As parliamentarians, it is part of our duty to protect their privacy and to make sure that the powers that we vote to the security agencies do not go further than necessary and compromise our constituents’ privacy and the security of their data.

[Simon Hoare]

I fear that the hon. and learned Lady may be slightly over-egging this particular pudding. I read the article this morning in The Guardian. She has cited, perfectly properly, the two operatives who were found to be in breach, disciplined and then dismissed. I politely suggest to her that probably quite a lot of the figures that she quoted refer to the fact that agent X could not remember Auntie Doris’s postcode and checked it because he wanted to send her a get well card. It is hardly “Enemy of the State”.

[Joanna Cherry]

It may not be, but it is an indication of how easy it is for people to abuse the rules, and an indication that the rules are abused. I am not seeking to impugn the security services. I am seeking to draw the attention of members of the Committee and the public to the fact that the rules are sometimes abused. If we are to afford the security services generous and intrusive powers, we have to be sure that they are proportionate and necessary. My point is that we do not have sufficient evidence that they are.

I am conscious that I have taken up quite a bit of time with that submission. I will not take it any further. I have alluded to the fact that there are outstanding legal challenges, and I will make one or two more comments on clause 119. I have already made the point that the clause seeks to put bulk interception programmes that are already in operation on a statutory footing. They were disclosed for the first time by Edward Snowden in June 2013, and their existence has now been avowed by the Government. They have never before been debated or voted on by this Parliament. That is why I am taking my time with this point.

The approach that has been held to date is maintained in the clause. The bulk interception proposed by the clause will result in billions of communications being intercepted each day, without any requirement of suspicion, or even a discernible link to a particular operation or threat. I have information from Liberty that the agencies currently handle 50 billion communications per day. To put that in context, there are only 7 billion people in the world, and only 3 billion of them have access to the internet.

The Intelligence and Security Committee reported at the end of 2014 that there were just 20 warrants in place under section 8(4) of RIPA authorising this vast volume of interception. It is clear from the wording of the clause that although it purports to collect overseas-related communications, it will, for the reasons the hon. and learned Member for Holborn and St Pancras gave, collect the communications of persons who are resident in the United Kingdom. Internet-based communications have eradicated the distinction between external and internal communications. He told us that posts on social media sites overseas, such as Facebook, use overseas cloud storage, so the material there would be covered by clause 119.

Searches on Google are counted as an external communication. I do not know about other hon. Members, but I must do at least a dozen searches on Google per day. Those are external communications, even though I am a citizen of the United Kingdom. Be in no doubt: the handful of warrants that will be issued under this clause will be scooping up billions of communications by the United Kingdom’s citizens. Those communications will then sit somewhere and certain people in the security service will have unwarranted access to them. There are some people who do not respect the rules, as we know from the disclosures in The Guardian today, so there is that concern, as well as the concern about the security of the data. The vast majority of those communications that will be scooped up will be the communications of innocent people.

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[Joanna Cherry]

I am sorry the hon. Gentleman is not persuaded, but I think others outside this room will be. It is important that somebody voices these very serious considerations while the Government attempt to railroad this legislation through the House. This is not right, and my party will not hesitate to hold the Government to account for it, not because we are troublemakers, but because we are a constructive Opposition. Having the responsibilities of a constructive Opposition, we have looked at what is happening in other countries and at their experience, and we do not consider that this degree of surveillance of our constituents’ and British citizens’ personal communications has been justified as proportionate and necessary.

We are not saying that the security services should not have any powers. We have a nuanced approach to the Bill. Members of the Scottish National party did not sit on their hands and do nothing on Second Reading; we made a constructive contribution to the debate. However, I will not be dissuaded from holding these very serious concerns. They are not just my concerns; they are widely held, and there is strong evidence from one of our closest allies that they are well founded.

[Simon Hoare]

Nor should the hon. and learned Lady be doing anything other than what she is. She is fulfilling her role in an exemplary fashion, and I mean that in a sincere and heartfelt way. The one thing I would challenge her on—or ask her to substantiate—is this. We have had Joint Committees and all the other organisations having a look; we had a very thorough debate on Second Reading; we had a full day’s debate on the Anderson report back in July last year; and now we have detailed, line-by-line scrutiny of the Bill, and I think we will have two days on Report. I ask whether she used the word “railroad” in haste, and whether I could invite her to reflect on its use and perhaps recast her comment.

[Joanna Cherry]

I will not recast it. I gave very detailed reasons on Second Reading as to why I felt that the Bill was not being given sufficient time. I am aware that hon. Members may feel that I have held the floor for too long; I have spoken at some length, but this is hugely important. Many people across these islands are very concerned about this part of the Bill—ordinary citizens, corporate entities—and we are not giving it enough time. There is not enough time to discuss its detail. I have taken up about 40 minutes giving just an overview of why I oppose part 6. I could have a go at every clause, but I will not do that, because we would be here forever and we have limited time, so I will draw my comments to a conclusion. The Scottish National party’s position is that each and every clause of part 6 should come out of the Bill until such time as there has been a proper independent review and a proper operational case has been made for these powers.

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[Mr Hayes]

I will say this. The Bill has been through an exhaustive process of consideration. The draft Bill was preceded by three reports on the basis of which—the hon. and learned Member for Holborn and St Pancras drew attention to this—the Government have gone further than originally set out, in the terms I described with publication of more information, explanation of the operational case and amendments to the codes of practice. The Bill was considered by three Committees of this House and I have referred to the Joint Committee’s views on bulk powers.

This Committee is now considering the Bill following publication in its final form on Second Reading. In the Second Reading debate the Chairman of the Intelligence and Security Committee, a senior Member of this House who chairs a very important Committee, said that he was convinced that these powers were necessary. The hon. and learned Member for Holborn and St Pancras has argued for perhaps going further on the operational case.

[Simon Hoare]

Will my right hon. Friend give way?

[Joanna Cherry]

Will the Minister give way?

[Mr Hayes]

I will just finish my sentence. I do not think anyone can say there has not been adequate debate about bulk powers. Before I give way to my hon. Friend and then the hon. Lady—I do not wish to put a further spoke in her wheel, or perhaps I do—I want to say that the US National Academy of Sciences could not identify any alternative that is appropriate to bulk powers.

[Simon Hoare]

I just want to put it on the record that I am sure my right hon. Friend shares my view that if the former Attorney General, our right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who chairs the Committee to which the Minister referred, had not been convinced, he would have had no problem whatever in telling the Government and anyone who wanted to listen that he was not convinced. Our right hon. Friend is not a patsy in this matter or a yea-sayer. If he disagreed, he would have told us.

[Mr Hayes]

Let me quote our right hon. and learned Friend. He said:

“The present Committee and its predecessor are satisfied that the Government are justified in coming to Parliament to seek in broad terms the powers that the Bill contains. None of the categories of powers in the Bill—including the principle of having powers of bulk collection of data, which has given rise to controversy in recent years—is unnecessary or disproportionate to what we need to protect ourselves.”—[Official Report, 15 March 2016; Vol. 607, c. 836.]

He said that on the basis of the information provided to him, but in the knowledge that robust safeguards will govern the examination of data that have been collected in bulk and that it will be possible to select such data for examination only when it is necessary and proportionate for a specific operational purpose. What is happening in other places is, of course, of interest to us and of course we consider other jurisdictions, but my job is to listen to those who have examined the Bill with considerable diligence and in considerable detail, and to be guided by their conclusions.

In that spirit and with that purpose, I hope that we can move on to the next clause, having been persuaded, I hope, that what the Government are doing is perfectly reasonable.