Investigatory Powers Bill

Debate between Stuart C McDonald and Peter Kyle

Tuesday 15th March 2016 Commons Chamber

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I pay tribute to my colleagues in the Joint Committee who have scrutinised this Bill for their sterling work, and I particularly thank our Chair, Lord Murphy, and the Clerks and experts who did such a fantastic job in supporting us. Most importantly, I thank those who provided written and oral evidence to the Committee, including all those who work so hard to protect us from terrorism and serious crime. They made our understanding of these issues much clearer, even if resolving them remains incredibly difficult.

The issues are many and varied. A number of hon. Members have focused on the right balance between security and privacy, which is fundamental to the Bill, but there are also other issues. By attempting to plug one gap in security, do we create a different problem elsewhere? That issue arises in relation to hacking and encryption. Why should we put future-proofing ahead of clearly defined powers and responsibilities? What precedent does the Bill set for other countries? There are also more practical questions, such as whether everything the Bill proposes can be done—that issue arises for internet connection records. We must assess the implications of the Bill for important freedoms and protections, including its effect on journalism, and its influence on relationships between lawyers and clients, and between whistleblowers, constituents and their MPs. What are the implications for UK tech businesses?

Despite those questions, there is undoubtedly need for legislation—no one in the House is denying that—because, as various reports have pointed out, the existing scattered miscellany of provisions across various obscure statutes undermines the rule of law. We must also remember that we are here in part thanks to Edward Snowden’s revelations, and the breakdown in trust that followed between the public and business on one hand, and intelligence agencies and law enforcement on the other. As we know, MPs—never mind the public—had no idea of extent of the capabilities that services and agencies were using.

[Peter Kyle (Hove) (Lab)]

Does the hon. Gentleman accept that public trust is undermined when laws that are designed for serious crimes are used for minor crimes and things such as antisocial behaviour? Does he agree with the shadow Home Secretary, who called for a proportionality clause to be included in the Bill to ensure that that does not happen in practice?

[Stuart C. McDonald]

I have severe difficulties with some of the provisions on internet connection records in the Bill. There are tests of proportionality in the Bill, but the shadow Home Secretary was proposing a different threshold for the types of crime for which we could use internet connect records, and we will consider that proposal with an open mind.

The context informs the tests and standards we need to apply to the Bill, so we can restore the trust the hon. Gentleman talks about. First, the Bill must comply with and support the rule of law by clearly defining the investigatory powers that public institutions have available, and the limits and safeguards that apply. Of course, it must itself be consistent with the law, including international human rights law and the right to privacy.

Secondly, there must be strong oversight of the use of these invasive powers and a body that can independently scrutinise the work of the organisations using them. Going further, that body must also have the powers and expertise necessary for ensuring that the powers are not being exceeded or abused. The ability to look under the bonnet, as some of the witnesses to our Committee described it, and see what is really going on is the only way we can avoid another Snowden incident in future.

Thirdly, there is a need for the Government to shoulder responsibility for justifying each and every one of the invasive powers sought and avowed. Parliament should not give an inch without being properly persuaded of their absolute necessity. This is the first time Parliament has debated many of them. Some, as has been said, go further than our European neighbours or even our “Five Eyes” colleagues.

In the time available, I will focus on the second of those areas of concern, the oversight and limits on powers. The introduction of judicial oversight is, to my mind, very welcome. I do not want to re-tread the debate about whether judicial review is the appropriate standard. The minutes of the Joint Committee will record that I voted to remove that test so that a general merits test was instead what was applied. My view, for what it is worth, is that if we are going for a double lock, it should be a proper double lock with two proper bolts of equal strength. The Bill Committee will form its own view on that.

I welcome the fact that the Government have made some attempt to respond to recommendations, strengthening the oversight role of judicial commissioners through the use of an in-house legal adviser, appointment of counsel and access to technical expertise, and through their ability to communicate with the tribunal directly, and to hear from whistleblowers. However, other recommendations have been rejected, including significant proposals to make the tribunal more transparent, broader rights of appeal and public hearings. The Bill Committee will want to push further on issues such as the appointments process and the process for agreeing the commission’s budget.

Very significant question marks still remain with regard to legal privilege and the protection of journalistic sources. Much more scrutiny work is required in this area. I also remain utterly dissatisfied with the Government’s response to one important criticism of the ability to significantly modify warrants without judicial oversight, something that risks running a coach and horses through judicial protections. I accept the principle of the Bill, but there is still a lot of work to be done to persuade me to vote for it.