Investigatory Powers Bill

Steve Baker Excerpts

Tuesday 15th March 2016 Commons Chamber

[Mr Dominic Grieve (Beaconsfield) (Con)]

I am grateful for the opportunity to participate in this debate. I want to summarise the views of the Intelligence and Security Committee on the Bill. The Committee has published two reports on the matter. In addition, the Government and the agencies have provided us with further evidence since we published the second report, and I want to update the House on that.

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. In that context, I go back to what I said in my intervention on the Home Secretary, which was that certain individuals in this debate are labouring under a false understanding of what the legislation is really about. We also welcome the fact that the Government have sought in the Bill to provide much greater transparency than previously existed. It has been frequently said, but it is worth repeating, that the Regulation of Investigatory Powers Act 2000 was often incomprehensible, and that is precisely what we need to get away from.

The basic problem is that, by its very nature, the operational detail of the secret work done by the agencies cannot be revealed without damaging or endangering their capabilities. Assurances are therefore needed that the extensive powers and capabilities that they undoubtedly have are taken on trust in so far as any potential for misuse is concerned. That is why the Intelligence and Security Committee was set up and the various commissioners appointed. It is noteworthy that, apart from a few exceptions based on mistake rather than on malicious intent, all those bodies have consistently given the investigatory powers used by the agencies a clean bill of health. From my own experience not only as Chairman of the ISC but as Attorney General, I believe that the agencies operate to high ethical standards and are scrupulous in confining the use of their powers and capabilities to legitimate purposes. I think that that is in their DNA. A previous head of GCHQ, Sir Iain Lobban, has said that if he had asked his staff to do something unethical, they would simply have refused.

However, such an environment produces its own problem. For those of us within the bubble, our experience of the nature of the agencies’ role risks making us complacent about the legitimate concerns of those outside that bubble. The fact that a particular power might never, to our knowledge, have been misused does not mean that we should disregard the possibility of creating transparent safeguards for its use, if this can be done without interfering with operational capability. We also have to accept the possibility that times might change and standards slip. It is important that we should provide safeguards against such slippage.

It is with that in mind that I turn to our response to the Bill. The recommendations made in our report were intended to improve the legislation by trying to provide greater clarity and transparency and increased safeguards where we thought it would be possible to do so. We are pleased that the Government responded to nine of our 22 recommendations, including three key ones. We particularly welcome the revisions made to increase safeguards relating to legal professional privilege, although I have noted the comments that were made earlier today and I suspect that this matter can be looked at still further in Committee.

A number of our recommendations were not accepted. We were disappointed that the Bill does not include a clear statement on overarching privacy protections. We accept that the Bill has safeguards, but they come across as slightly piecemeal. This seems to be a missed opportunity to provide the necessary level of public reassurance, even if the practical consequence would not make a vast amount of difference. The same point arises in relation to putting all powers relating to investigatory powers operations in one place. The Government have chosen to leave some powers elsewhere, even though we thought it would have been helpful to put them all in the Bill.

I turn now to the three most significant issues. The first was our concern that the authorisation procedures for the examination of communications data were inconsistent in respect of safeguards for those in the United Kingdom. There are different routes for obtaining such material. Generally speaking, law enforcement agencies will access such material via a specific request to a communications service provider, which is subject to senior officer authorisation, but it could also be obtained via GCHQ bulk interception capabilities as a by-product. In those circumstances, although there are many safeguards relating to examining content, the same safeguards do not exist in respect of the data on their own. We thought that that was inconsistent and might be changed. The Government have helpfully responded by pointing out that this could make the burden too onerous for senior officers. We believe, however, that that matter could be addressed and we hope that it will be looked at again during the passage of the Bill.

[Mr Steve Baker (Wycombe) (Con)]

Does my right hon. and learned Friend think that this matter could be addressed by increasing the independence of judicial oversight, so that judges would be much more able to refuse a warrant? Might that not also increase public acceptance of these measures?

[Mr Grieve]

This is an area that does not currently have warrantry. It is an area in which there is specific authorisation, and that is what we have been looking for. However, we will listen carefully to what the Government have to say about the practical problems that that might pose.

The second issue concerns the agencies’ use of equipment interference. Our concerns focused on the way in which the use of this capability is authorised, rather than on the need for it, which is clear to us. In particular, we were not initially provided with evidence that explained the need for a bulk power, as opposed to a targeted thematic one. That is why we reported in the way we did. Following publication of our report, we received additional evidence from the agencies as to why they need bulk equipment interference warrants to remain in the Bill and they actually made a persuasive case. More importantly, the Committee was reassured that information obtained by such means will be treated in exactly the same way, with exactly the same controls, as data acquired under a bulk interception warrant. The Committee is therefore broadly content that there is a valid case for the power to remain in the Bill, but, just as with bulk interception warrants, we want to see the safeguards and controls in detail and hope to do so in the near future.

The third issue is that the Committee expressed concern about the process for authorising the obtaining of bulk personal datasets. It is undoubtedly necessary and proportionate that agencies should have the power to obtain them, because they can be vital to their work in helping to identify subjects of interest, but they largely contain private information on large numbers of people of no relevant or legitimate interest to the agencies at all.