Reports into Investigatory Powers

Baroness May of Maidenhead Excerpts

Thursday 25th June 2015 Commons Chamber

[The Secretary of State for the Home Department (Mrs Theresa May)]

I beg to move,

That this House has considered reports into investigatory powers.

When I made my statement on the publication of the Anderson report two weeks ago, several right hon. and hon. Members requested a full debate in this House. As I said then, and as I have said many times in the past, these are serious and sensitive matters. They require careful deliberation of the evidence, to ensure that the legal and privacy framework governing the use of investigatory powers is properly accountable and as robust as possible. These principles—accountability, transparency and a robust legal framework—are underscored by the report by David Anderson, QC. His report was preceded by the Intelligence and Security Committee’s “Privacy and Security” report, which was published in March and which examined the appropriate balance between the need for security and respect for privacy.

Today, my right hon. Friend the Prime Minister has laid two further reports before the House: the annual report of the Chief Surveillance Commissioner and the annual report of the Intelligence Services Commissioner. Later this summer, a panel co-ordinated by the Royal United Services Institute and established by the former Deputy Prime Minister, the right hon. Member for Sheffield, Hallam (Mr Clegg), will report on the legality, effectiveness and privacy implications of the UK’s surveillance programmes and assess how law enforcement and intelligence capability can be maintained in the face of technological change. Together, those reports represent substantial independent review of the frameworks and oversight governing the use of investigatory powers.

In addition, last year, my right hon. Friend the Prime Minister appointed Sir Nigel Sheinwald as his data envoy. Sir Nigel has submitted his report to my right hon. Friend and although, for obvious reasons of sensitivity, it cannot be published, a summary has been placed on the Cabinet Office website. Sir Nigel focused both on short-term and longer-term co-operation, and on the need to create an international framework between democratic countries. That would ensure that, where necessary and proportionate, data can be accessed even when they are held outside the requesting country’s jurisdiction.

As I have said before, and as the Anderson and other reports make clear, the use of investigatory powers by the police and the security and intelligence agencies is essential for national security and for the fight against crime. If the police are to investigate serious crimes such as murder and rape, if our law enforcement agencies are to track down criminals that operate online and if we are to protect the vulnerable and stop those who mean to do us harm, the police and the security and intelligence agencies need access to these powers when appropriate.

As this morning’s figures show, the threat from terrorism is serious and it is growing. In 2014, 289 people were arrested for terrorism-related offences, an increase of 30% compared with the previous year. We know that investigatory powers are important for tackling terrorism, and that communications data have played a significant role in every Security Service counter-terrorism operation over the last decade. Since 2010, the majority of MI5’s top-priority UK counter-terrorism investigations have used intercept capabilities in some form to identify, understand or disrupt plots seeking to harm the UK and its citizens.

Although the Anderson report and others recognise the necessity of investigatory powers, just as important is having the right regulatory framework, the right oversight and the right authorisation arrangements governing their use. As David Anderson has said, he regards it as imperative that the use of sensitive powers is overseen and fully declared under arrangements set by Parliament. It is therefore entirely right that Parliament should have the opportunity to debate those arrangements. Just as the Anderson review was undertaken with cross-party support, I am committed to ensuring that we take forward these arrangements on the same basis.

I want to turn first to David Anderson’s report. It is, as I have said before, a comprehensive report, covering the full range of sensitive intelligence capabilities, and there are 124 recommendations. I hope that right hon. and hon. Members have now had the opportunity to read it for themselves, and reflect on what David Anderson has said. David Anderson makes it clear that there is a need for investigatory powers—within an appropriate framework—in the fight against terrorism and serious crime. He notes the significance of communications data in prosecutions and that sensitive interception powers are not used routinely. He said:

“Interception is therefore used only in the most serious cases... But interception can still be of vital importance for intelligence, for disruption, and for the detection and investigation of crime.”

He also agrees with the Intelligence and Security Committee and others on the importance of bulk data, saying that

“its utility, particularly in fighting terrorism in the years since the London bombings of 2005, has been made clear to me.”

But David Anderson is also firmly of the view that the system needs updating, and he supports the need for a new legislative framework, noting that the Regulation of Investigatory Powers Act 2000 was enacted 15 years ago. He makes a number of recommendations regarding transparency, oversight and authorisation.

On the legislative framework, David Anderson makes the point that legislation is currently spread over several different Acts, and recommends bringing it together in a single law. On oversight, he recommends the merging of the three oversight commissioners—the Interception of Communications Commissioner’s Office, the Office of Surveillance Commissioners and the Intelligence Services Commissioner— into a new single independent surveillance and intelligence commission. On authorisation, Anderson comes down on the side of judicial authorisation of warrantry, although the ISC takes a different view and has endorsed the existing system. Anderson points out the care with which Secretaries of State approach the task and makes it clear that European Court of Human Rights jurisprudence does not require a system of judicial authorisation, but he is of course mindful that requirements may change in the future.

[Joanna Cherry (Edinburgh South West) (SNP)]

Shortly after the right hon. Lady spoke in the House two weeks ago, The Guardian reported that Downing Street was indicating that the Prime Minister is unlikely to agree to David Anderson’s recommendation for a judicial authorisation of warrants. Does that mean that she is effectively ruling out judicial authorisation of warrants at this early stage?

[Mrs May]

Perhaps the hon. and learned Lady will let me read the very next sentence in my speech, which says that, on these recommendations, the Government have not yet reached a decision. These are important matters and we must consider them carefully. Today’s debate will inform our view.

The ISC’s review into privacy and security also supports the agencies’ need for investigatory powers, but recommends that the legal framework needs updating and calls for increased transparency, strengthened safeguards and improved oversight. The review involved a detailed investigation into the capabilities of the intelligence agencies and contained an unprecedented amount of information about how they are used and the legal framework that regulates their use.

The Committee found that all the surveillance activities of the intelligence agencies are lawful and proportionate. It concluded that the agencies do not seek to circumvent UK law—including the Human Rights Act 1998—and do not have the resources, capability, or the desire to conduct mass surveillance. It commended the agencies for the care and attention they give to complying with the law.

None the less, it concluded that the current legal framework is “unnecessarily complex” and should be replaced with a single Act of Parliament, governing everything the agencies do to increase transparency. Going further than David Anderson, the ISC’s recommendations include replacing the legislation that underpins the agencies as well as the legislation relating to interception and communications data. Its recommendations include allowing Secretaries of State to disclose the existence of warrants where that can be done without damage to national security; increased checks, scrutiny and use of the warrant process; and more resources—and more checking of the agencies’ activities—by the Intelligence Services Commissioner and the Interception of Communications Commissioner. As with David Anderson’s report, debate on these issues will inform the Government’s view.

[Robert Neill (Bromley and Chislehurst) (Con)]

My right hon. Friend is making an important point. On informing the Government’s view, I welcome her concession that the Government will think carefully about the Anderson review on judicial oversight. She also mentioned earlier the importance of cross-party working on parliamentary oversight, where appropriate. Will she undertake to include the relevant Select Committees of this House in that cross-party approach?

[Mrs May]

First, may I congratulate my hon. Friend on his election to a chairmanship of one of those Select Committees? I suspect that he is thinking of the Justice Committee. Of course it is not for the Government to indicate to Select Committees what business they should be undertaking, but I have every expectation that relevant Select Committees will wish to look at this matter. The Government will take all representations and consider them in the round in their response to the reports.

In addition, as I mentioned earlier, the Prime Minister has today published the annual reports of the Chief Surveillance Commissioner and the Intelligence Services Commissioner. I commend both of those reports to the House. Both demonstrate the value of rigorous independent oversight and provide reassurance on the work of the agencies and the powers that they oversee. I thank the Chief Surveillance Commissioner, the Intelligence Services Commissioner and their staff for their excellent work, their dedication and public service.

I appreciate that Members of the House will not yet have had time to study the reports in detail, but I would like to draw their attention to the findings of the Intelligence Services Commissioner, who is clear about the seriousness with which these powers and the granting of warrants are approached by the agencies and Government. He says:

“The agencies take great care to seek other less intrusive means before undertaking this level of intrusion and often consult their lawyers to ensure the legality of their submission.”

He goes on to say that great care is carried out by the warranty units at the Foreign Office, Home Office and Northern Ireland Office, which

“will question the agencies concerning the use and applicability of the suggested activity.”

The final check in the process is the oversight provided by a Secretary of State, who can refuse a warrant and who he says

“are aware that they are ultimately accountable for the operation.”

As I have already said, the Government have not yet taken firm decisions on particular recommendations in David Anderson’s report, or indeed on any of the other reports we will discuss today. There are many voices both inside and outside the House who have important views that need to be heard. We must consult those, including the police, the security and intelligence agencies, law enforcement agencies, and the telecommunications companies, as they are most directly affected. We also need to hear what Members of this House have to say.

I am clear that, whatever legal and privacy framework we propose, it will need to be agile and capable of responding to urgent cases. It will need to be clear and accountable, to be capable of commanding public confidence, and to ensure that sensitive powers are available in a way that will stand the test of time.

The reports that we are discussing today provide a firm basis for consultation, and today’s debate—the second time this House has discussed this matter in two weeks— will be an important contribution to that process. As I have said previously, the operation and regulation of the investigatory powers used by the police and the security and intelligence agencies is a matter of great importance to the security of this country and an issue of great interest to many Members.

The Government are committed to introducing a Bill on investigatory powers early next year, so that it can receive Royal Assent before the sunset clause in the Data Retention and Investigatory Powers Act comes into effect at the end of 2016. In order to meet that timetable and allow the full parliamentary scrutiny, we intend to bring forward a draft Bill for consideration in the autumn, which will be subject to full pre-legislative scrutiny, including by a Joint Committee of both Houses.

As we move forward in our discussions, it is important that we remind ourselves about the very serious nature of what we are debating, because these powers are about protecting and saving people’s lives. In any debate about the right balance between security and privacy, it is important that we remember the full context of the threats we face. They include the threat from terrorism—both from overseas and home-grown in the UK. Since the attacks on 7 July 2005, the Security Service believes that around 40 terrorist plots have been disrupted. Around 700 people have gone from the UK to Syria and Iraq to fight or support terrorist organisations—a number of them to join ISIL or Daesh—and around half have returned. ISIL has made it clear that it wants to strike us here in Europe, and we know that it uses sophisticated propaganda and modern technology to spread hatred and in some cases advocate or facilitate acts of terrorism.

We also face other threats from organised criminals and the proliferation of cybercrimes such as child sexual exploitation, and threats from hostile foreign states and from military and industrial espionage.

Without the use of investigatory powers, it would be difficult to investigate, prosecute and prevent not only terrorist-related activity but crimes such as murder, rape, human trafficking, child sexual exploitation, cybercrime and kidnap. We know that communications data are used in 95% of serious and organised crime investigations handled by the Crown Prosecution Service. Similarly, intercept has played a significant role in investigating crime and preventing terrorism. In 2014, 2,795 interception warrants were issued. Of those, the majority—68%—were issued for serious crime, 31% for national security and 1% for a combination of serious crime and national security.

In the face of such threats, the Government would be negligent if we did not ensure that those whose job it is to keep us safe have the powers, support and capabilities they need. I am committed to ensuring that. However, security and privacy are not, as I said before, a zero-sum game. We can only enjoy our privacy if we have our security, just as we can only be free to live our lives as we wish, enjoy the many benefits that this country has to offer and go about our lives unimpeded and free from threats because security underpins our way of life.

Too often in the debate about investigatory powers, we are drawn into arguments in which privacy is prioritised at the expense of security or security at the expense of privacy, but it is possible to have a proper balance between the two. We must consider these issues in the round. Through parliamentary scrutiny, we must ensure that we have a framework set by Parliament that delivers as it is intended to and that can command public confidence. That framework must be underpinned by thoughtful and constructive debate, and I look forward to hearing what right hon. and hon. Members have to say in what I believe will be a well-informed and interesting debate.

--- Later in debate ---

[Yvette Cooper]

My hon. Friend is exactly right. There is strong support for the work of the intelligence agencies and the work they do in Britain, which has historically always been the case, but we should never take that for granted. It would not be fair on the intelligence agencies to take it for granted, so maintaining that sense of trust and confidence across the whole of society and not simply across the majority of people is extremely important for the work that they do. If we are to protect both our liberty and security in a democracy, we need to achieve consent for and understanding of the law and it is not just those who are concerned about surveillance who value greater clarity. It is also an essential mission of our intelligence agencies as part of defending democracy and protecting liberty and security.

The Home Secretary has been clear that there is no doubt that investigatory powers are vital in confronting terrorism, child abuse and other serious and organised crime. During the Home Secretary’s statement two weeks ago, I mentioned the awful case cited in David Anderson’s report in which communications data were used, rightly, to stop the abuse of three children who were all less than four years old. There are other cases. For example, Operation Overt dealt with the largest and most serious terrorist plot we have ever faced. Between 2008 and 2010, 10 individuals were convicted of plotting to blow up multiple transatlantic airliners. A key part of the evidence that brought the plotters to justice was coded conversations by email between the conspirators and extremists abroad in which they discussed the preparation for their attacks and the selection of targets.

It is clear from the review and other evidence that the powers passed through the Data Retention and Investigatory Powers Act 2014 last summer are essential and must be renewed, and will need to be renewed in good time before the sunset clause at the end of next year. It is also right, however, that we ensure that the legal framework that governs them is updated so that it properly reflects the needs of security and the need for safeguards.

In 2012, the Home Secretary made proposals in the draft Communications Data Bill that would have gone much further than the current legislation. I argued at the time that there were serious problems with the Bill, because it put too much power in the hands of the Home Secretary. The Joint Committee set up to scrutinise the draft Bill also, rightly, raised substantial concerns. David Anderson’s report makes it clear that he does not think that the draft Bill was the right approach. He noted that the first clause was “excessively broad”. The important question of IP addresses, which was encompassed in the draft Bill, has now been dealt with in other legislation. On weblogs, which the Home Office said at the time it wanted to pursue, David Anderson concluded that he

“was not presented with a detailed or unified case”

on the viability, practicalities or legal considerations.

On perhaps the most significant and the most controversial measure in the draft Bill—requiring internet service providers to hold huge amounts of third-party data—he commented:

“I did not get the sense that this was judged to be the priority that it once was, even within law enforcement”,

and he concluded:

“Accordingly…there should be no question of progressing this element of the old draft Bill until such time as a compelling operational case has been made, there has been full consultation with CSPs and the various legal and technical issues have been fully bottomed out. None of those conditions appears to me to be currently satisfied.”

Experts have also expressed substantial concerns about encryption and the cost and proportionality of the proposals.

Where David Anderson and the agencies confirm that there is a problem is in ensuring that companies whose headquarters are overseas comply with UK law, particularly for data and communications that involve those who are living and operating in the UK and those who pose threats to the UK. The Home Secretary referred to the report by Nigel Sheinwald, whose work is vital because, as the agencies and the Home Secretary recognise, UK law is only part of the answer; legal and diplomatic arrangements with other countries are immensely important. In fact, there is a growing range of views that the proposals in the draft Communications Data Bill were not the right way to deal with that genuine and significant problem in relation to companies based overseas.

On that basis, I ask the Home Secretary to confirm that she has dropped the original draft Communications Data Bill and is starting with a fresh approach. I think it would help our debate in this place and the development of future proposals that should balance the appropriate powers and the appropriate safeguards. Will she confirm that that draft Bill has been dropped and a new approach will be taken?

[Mrs May]

After the Joint Committee that scrutinised that draft Bill had done its work, we made it clear that we would take on board in principle the various recommendations the Committee made. Obviously, David Anderson’s report refers to some of the issues in the draft Communications Data Bill, so we will have to look at that in the context of subsequent proposals. We were clear that we would accept all the principles that that Committee set out, including that the original draft Communications Data Bill, which was an attempt to future-proof our legislation, was too wide ranging.