Investigatory Powers Bill (First sitting)

Suella Braverman Excerpts

Thursday 24th March 2016 Public Bill Committees

[Byron Davies (Gower) (Con)]

I was a member of some of the agencies that will attend today.

[Suella Fernandes (Fareham) (Con)]

I was a Treasury counsel, representing Government Departments.

--- Later in debate ---

[Victoria Atkins]

Q By way of conclusion, you gave evidence to the Joint Committee scrutinising the draft Bill in November 2015 and at that time you said it gave effect to 90% or more of the recommendations in your report entitled “A Question of Trust”. Now that the Government have responded to the Joint Committee’s report and made further amendments, how much closer is the Bill to your report’s recommendations?

David Anderson: If I may say so, I thought that it was an excellent report and I was very pleased to see that the Government had given effect to the great majority of those recommendations.

[Suella Fernandes]

Q I have two questions. On the double lock and the judicial review test, concerns were expressed by witnesses to the Joint Committee about two issues. The first is the access to evidence by the judges and by the Ministers or the Home Secretary in the process of considering warrants. What would be the access to evidence by both parties involved in the double lock? Would it be the same or different?

David Anderson: I would certainly assume that the judges would have access to all the evidence that the Home Secretary or the Secretary of State had access to. I believe I have actually had a private assurance that that would be the case. I am afraid I have not checked to see whether that is in the code of practice, but plainly it ought to be, because this is not a rubber-stamp and nor is it simply a test of rationality or process. If it needs to, it should involve a proper look into these issues of necessity and proportionality. I was delighted to note that the Foreign Secretary said as much when he wound up the debate on Second Reading last week.

[Suella Fernandes]

You have pre-empted my second question, which is about the concerns that various witnesses have raised about the level of scrutiny involved in the judicial review test. Are we looking at a Wednesbury level of scrutiny?

[The Chair]

Order. I am afraid we have reached the end of the time allotted for the Committee to ask questions. On behalf of the Committee, thank you very much for your time and for giving evidence today.

Examination of witnesses

Eric King and Sara Ogilvie gave evidence.

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[Simon Hoare]

Q You are right that there are a number of clubs in the golf bag of the law enforcement team and the agencies, but given that we live in an incredibly fast-moving, technological world, where international boundaries are not recognised and so on, would you agree that the more facilities that the agencies have available to them, the better—that is, the wider that the net can be cast, the more ne’er-do-wells one is going to identify and hopefully apprehend?

Eric King: Respectfully, as you acknowledge, there are different ways to solve a problem. Casting a very wide net is not always the right thing to do. IP resolution is certainly a very narrow technical issue that you need to resolve. Collecting all sorts of additional information in additional areas would not help resolve that narrow issue. I think you have to look at it on a case-by-case basis.

That is part of the reason why we need to scrutinise properly the operational cases for the variety of these powers, to understand which bits of them they help solve and which bits they do not. Certainly, intrusive powers need to be available to our law enforcement and agencies, but we need to understand which bits work and which bits do not.

[Suella Fernandes]

Q This is a question for Sara. In evidence to the Joint Committee, Shami Chakrabarti criticised the Bill on behalf of Liberty, saying that judges would not have the same access to evidence as Ministers in the warrant process. We have just heard evidence from the independent assessor of the terrorism legislation, David Anderson QC, that that is not the case. The Home Secretary has said on the record that that is not the case, and that they would have the same access. Do you withdraw that criticism of the legislation?

Sara Ogilvie: No. This is one of the areas where there has been a lot of discussion and to-ing and fro-ing. If the Home Secretary wishes to satisfy our concerns, those are the kinds of provision that should be dealt with on the face of the legislation. It seems to us that judicial review remains an inherently limited jurisdiction. That is quite a legal term to say that there are only so many things that it can do. We think that a much broader power needs to be granted to the judicial commissioners in order to satisfy public concerns that the powers be used appropriately and to match human rights standards. This is an area on which the Home Secretary has sought to give lots of reassurance, in which case I think it would be best if she put that reassurance in legislation.

[Suella Fernandes]

Q Evidence was given to the Joint Committee by Sir Stanley Burnton, the Interception of Communications Commissioner, and Lord Judge, the Chief Surveillance Commissioner. Both said that the double lock involves an intensive analysis including analyses of necessity and proportionality. It is not simply rubber-stamping. Again, do you maintain your disagreement with those senior judges?

Sara Ogilvie: I respect and agree with the fact that an extent of necessity and proportionality analysis will be done, but there is still very limited capacity for judges and judicial commissioners to undertake this exercise. We have seen, and judicial review case law tells us, what level of scrutiny can be applied to different kinds of decision, and we know that where a decision does not involve a restriction on the physical liberty of an individual, a lesser scale of judicial review scrutiny will be applied.

We also know that where cases involve national security, judges must apply a lesser level of review. Although I recognise that there is a difference of views, I think it needs to be much clearer in the legislation. Judicial review should be avoided as a standard in this circumstance.

[Christian Matheson]

Q I will ask only one question. Mr King, you talked about the astonishing amount and huge volumes of data that are collected. Can you both comment on the statement that the sheer volume of information means that there is less of a threat to personal privacy, simply because individuals’ personal data are almost swamped within the mass of data collected?

Eric King: It is an interesting idea, isn’t it, that the more widespread the intrusion, the less potentially bad it is. That is not a view that I can understand myself, particularly now. Computer analytics of such material is going to increase. It is going to get better and faster. The more data being collected, the more intrusion will be applied year on year as GCHQ engineers find cheaper, better and faster ways to process it. Perhaps five years ago, swamping agencies with material might have resulted in people passing through, but every day, that becomes less likely and less real.

We have seen in the last five years a 7,000% increase inside GCHQ of the analytical capability on material. That means that 7,000% more material is being touched, analysed and scrutinised by those agencies. Perhaps it was an idea that could be comprehended 20 years ago, when it involved physical piles of paper that no one ever looked at, but now it is all being automated, and I am not sure that the notion stands up today.

Sara Ogilvie: I clearly agree with what Eric has said. The only thing I would add is that I ask you to consider the fact that we are not just concerned about the state having this information. All this information that is stored somewhere can be accessed by other individuals for nefarious purposes. We have seen the TalkTalk hacks this year. We have seen the VTech hacks. There are real and legitimate concerns about the way this vast amount of personal information can be used, not just by the state but by other people who really do wish to do us harm.