Investigatory Powers Bill (Second sitting)

Suella Braverman Excerpts

Thursday 24th March 2016 Public Bill Committees

[Joanna Cherry]

Q You will not get passwords from an ICR?

Alan Wardle: No.

[Suella Fernandes (Fareham) (Con)]

Q There has been a description of Tor as a facility that allows digital abuse of anonymous online activism. It is linked to encrypted information. I want you to say a bit about what effect encryption has on some of the work that you are involved with?

Alan Wardle: A lot of the activity that we take for granted online—shopping, banking and all the rest of it—could not be done without encryption, but of course, as with all these tools, encryption can be used for bad purposes by bad people. Similarly, with services like Tor and Freenet—the dark web—in the cases that we are concerned with, you get your most highly committed and dangerous offenders, quite often, particularly sharing very explicit images or videos of children being abused. Those services enable them to hide there. The police do the best they can, but, again, for a lot of that they will be dependent on traditional undercover techniques.

I think there is a question that is—I say this respectfully —beyond this Committee’s remit and beyond many of our remits. The direction of travel generally is that we are seeing greater moves to encrypt data as a matter of course, with things like Google Chrome browsers and so on. With browsers such as that, internet service providers cannot put in place the kind of protections they have, so they do not know what is going on there. That is a direction of travel and something that is worrying. It is clearly a global issue, but the police not being able to track what is going on due to increasing levels of encryption is a worry.

[Victoria Atkins (Louth and Horncastle) (Con)]

Q Just to pick up on the point made by the hon. and learned Member for Edinburgh South West about the missing child, is it right that, sadly, the victims of sex grooming rings do not surround themselves with friends and parents, because one of the tools that the groomers use is to isolate the victims, so that they have no one they can turn to in their hour of need?

Alan Wardle: That can be true. They can even turn the child against their family and friends as well.

--- Later in debate ---

[The Solicitor General]

Q But you appreciate the problem that we have in getting this right.

Lord Judge: I do, but that is what Parliament is for. We have to decide what the law should be. I myself would like the law on this issue to be absolutely unequivocal, whatever Parliament or the House of Commons ultimately want.

Sir Stanley Burnton: We wonder what the function of clause 196(6) is. It is either telling a judge the obvious or it is a big stick to wave at the judge, to say, “You have to approve this because if you don’t, you’ll be jeopardising the success of an intelligence operation.”

[Suella Fernandes]

Q Building on the point made by the Solicitor General, clause 21 sets out the “necessary” and “proportionate” tests. We have heard a lot about those words. What questions do you ask when you are assessing proportionality? What is that analysis?

Sir Stanley Burnton: You are looking at the effect of the measure in question as against alternatives and as against the mischief that is aimed at—are we talking about saving life, or it just a matter of money? If it is money, is it a lot of money? Is it pensioners’ money or the Government’s? You weigh one up against the other, and in the end, it is a matter of assessment—looking at one and looking at the other.

[Suella Fernandes]

Q So reading that meaning of proportionality, which we all agree on, with the factors listed in clause 18, is it not clear to a decision maker what factors are relevant and the level of scrutiny to be applied?

Sir Stanley Burnton: You have had my answer already. I am content with the Bill as is, but Lord Judge takes a different view.

Lord Judge: The answer surely is that those criteria are applied by the Secretary of State. The commissioner will apply the same criteria, but are you asking him or her to be a co-decision maker or a supervisor of the Minister? If a supervisor, then you have to define what his or her role should be.

[The Chair]

Thank you very much, panel. Have a happy Easter and enjoy your weekend reading.

Examination of Witnesses

Lord Reid and Charles Clarke gave evidence.

--- Later in debate ---

[Matt Warman]

Q You talked about updating the legislation and the importance of that. Do you see an internet connection record or something equivalent to it as a key part of updating this legislation for the world we live in now?

Charles Clarke: I do personally, yes.

Lord Reid: I do as well. Not to test the Committee, but two years after 7/7, on 6 August 2006, there was a plot to bring down seven airliners. There would have been 2,500 victims, and intercept was absolutely essential in protecting those lives—absolutely essential—with both the internet and telephone communications.

[Suella Fernandes]

Q It has been raised before, but some witnesses have said that warrantry should be solely within the Executive function—

Lord Reid: What, sorry?

[Suella Fernandes]

Warrantry should be retained by the Executive. Other witnesses have said that it should be a judicial function. The double lock is a middle way. Where do you both sit on that spectrum, ideally?

Charles Clarke: Personally, I am in favour of the Executive responsibility. I would prefer to have that. I think the more you draw the judiciary directly into the operation of the law, as in continental systems, the more you threaten the ability of the judiciary to play its characteristic role. I understand why proposals are being made to have a double system, and I am not against it, but it is against my instincts, actually. It is a path that has been ill thought through. There is a whole section of lobbies in this country who believe, essentially, that the lawyers are better people, in whom you can have more confidence than in the politicians. I reject that assessment.

Lord Reid: I agree entirely with Charles on that. I think that there are a couple of other reasons as well. First, this judgment ultimately is not just the strict codification of a law, although it involves that; it is about political judgment—I therefore think that there is a second reason. The third reason is quite simple. If a wrong decision is made and 2,500 lives are lost, for instance, it will not be the judges who are held accountable—I do not just mean by Parliament, but by the family, the public, the community—it will be the Minister. Therefore, for those three reasons, I personally am in favour of this being the decision of the Executive. For the reasons that I explained, I am willing to accept that the Home Secretary has had to bow to other pressures and to put in judicial oversight, but only as long as that is about oversight and judicial process, and not about decision making. If it is about decision making, I think it is a recipe for ineffective operational capability.

[The Chair]

I thank our two witnesses for tailoring their responses in a way that allowed all colleagues to get in, including Back-Bench colleagues. Absolutely fascinating. On behalf of the Committee, I wish you a very happy Easter. Thank you so much for being so generous with your time.