Reports into Investigatory Powers

Debate between Tom Brake and Nick Clegg

Thursday 25th June 2015 Commons Chamber

[Mr Nick Clegg (Sheffield, Hallam) (LD)]

I speak as someone who, as the Home Secretary knows, had a hand in the commissioning of this excellent report. The right hon. Lady will remember with fond, misty-eyed nostalgia the debates that she and I had on this complex, fraught and all-important area of public policy. One of the consequences of those debates and disagreements was that a number of reports were commissioned, including David Anderson’s. We look forward, as the Home Secretary said, to the publication of the report by RUSI. I strongly endorse her compliments to David Anderson and to the authors of the other reports, and I join in all that has been said in complimenting the professionalism and integrity of the work of the agencies—professionalism and integrity that I found on display daily in my work with them in government. As I will explain, my quibbles were invariably with proposals emanating from the Home Office about what new power should make its way on to the statute book, rather than with the day-to-day conduct of our highly effective intelligence agencies.

On the back of this excellent report from David Anderson, we have an unusual opportunity to try to reset the balance between privacy and liberty on the one hand, and safety and security on the other, in a digital age. As the Home Secretary rightly pointed out, all too often this debate is falsely caricatured, as if people who worry about security do not worry about liberty, and people who worry about liberty do not worry about security. In this area, as in so many other walks of life, it is necessary to strike the right balance. To somewhat misquote Benjamin Franklin, if we give up our liberty to gain a little security, we will deserve neither and lose both. As the shadow Home Secretary said, we should be striving to strengthen both liberty and security in tandem.

I am certainly no slouch when it comes to introducing new surveillance powers on to the statute book when it is demonstrably the case that doing so makes us safer and is necessary in order to keep up with new technologies. That is one of the reasons, as the Home Secretary is aware, why I always advocated legislating, as we have done, to enable enforcement agencies to match IP addresses to handheld devices, and why we legislated in the Data Retention and Investigatory Powers Act 2014—the acronym is DRIPA, unfortunately—to improve data-sharing between UK and US enforcement agencies. However, I have always drawn the line—I did in government and I do now—at proposals that I feel are either not based on proper evidence or not adequately proportionate and transparent. It is in that light that I would like to turn to a few of the points made by David Anderson.

I will not dwell on the points that have already been made about introducing a judicial role in the issuing of warrants, but I want to underline the shadow Home Secretary’s point that David Anderson made his case on the basis not just of principle, by pointing out that our practice is significantly out of line with how warrants are issued in other analogous jurisdictions, but of his observation—this was surprising, at least to me—that there might be operational value in introducing a judicial element in the issuing of warrants, as it would enable us more readily to secure data from American communications service providers, which are used to that kind of system.

I want to dwell on David Anderson’s comments on the draft Communications Data Bill—the so-called snoopers charter. David Anderson is scathing in his report about the proposals in the Bill to force UK network providers to collect and store third-party data relating to services operated by companies based overseas. He says quite unambiguously that,

“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”.

It is worth reflecting on that for a moment. I was told categorically and repeatedly in government that that was absolutely necessary for the safety of the public; that public safety would be in jeopardy if I did not endorse it. David Anderson has now found that no operational case has been made for that. Echoing an earlier question to the Home Secretary, I seek clarity from the Government on whether the forthcoming Bill will contain third-party data provisions, which David Anderson has said it should not.

In the light of that, I think that we should treat other proposals that do not have a clear evidence base or rationale—most importantly, the Home Office’s proposal to require CSPs to store so-called weblogs—with an equal amount of healthy and considered scepticism.

[Tom Brake]

Is my right hon. Friend aware of any reason why the Government should be intent on joining Russia as the only liberal democracy in the world that captures weblog information?

[Mr Clegg]

I thank my right hon. Friend for that intervention, which I will come to in a moment, because David Anderson has made some specific recommendations on how we compare with other jurisdictions.

David Anderson has managed to do something that I certainly did not manage to do in government: to get the Home Office to define the somewhat nebulous term of weblogs. Weblogs, according to his report, are

“a record of the interaction that a user of the internet has with other computers connected to the internet.”

The House should take a long, hard look at that definition. It encompasses just about everything someone is likely to do on an internet-connected device—every step they take, every app they open, every edit they make to an online document—and that would be stored for the entire population for 12 months. David Anderson says that, remarkably, at no point was he presented with a “detailed or unified case” for such sweeping powers.

David Anderson also makes it clear—this relates to the point my right hon. Friend the Member for Carshalton and Wallington (Tom Brake) has just raised—that we would be seriously out of step with the rest of the world. He states:

“I am not aware of other European or Commonwealth countries in which service providers are compelled to retain their customers’ web logs for inspection by law enforcement. I was told by law enforcement both in Canada and in the US that there would be constitutional difficulties in such a proposal.”

The House will also be interested to know that the new Australian data retention law specifically excludes the collection of weblogs precisely because the Australian police told their Government that it would be a disproportionate invasion of privacy.

It is entirely reasonable for law enforcement to want to identify how a known suspect is communicating online, but that is a completely different proposition from the one that the Home Office has now been putting forward in one form or another for eight years. David Anderson sets out a strict process, including using existing powers better but less intrusively than planned by the Home Office, and the presentation of a proper operational case before any detailed proposal is put forward by the Government. I am obviously keen to know from the Government whether that reasonable approach that he advocates will indeed now be pursued.

Finally, I welcome the Home Secretary’s announcement today that the Bill will be published for pre-legislative scrutiny, which will allow further debate on its undoubtedly complex and important provisions. The Bill must be as comprehensive as possible. Both the Intelligence and Security Committee and David Anderson have argued that it should incorporate all the powers that exist in different statutes at present. In that spirit, I hope that the Government will undertake to avow all undeclared surveillance capabilities and major programmes as part of that process.

I have come to the view that the Government’s standard blanket position of “neither confirm nor deny” is simply no longer tenable. Recent disclosures mean that the public are able to read detailed accounts of alleged surveillance capabilities, but Government Ministers are unable to explain or defend the need for them in this House or in public. I believe that undermines public trust, feeding a suspicion that there are parts of the system that somehow operate beyond proper scrutiny and transparency. Although we cannot and should not reveal details of operations and specific investigatory techniques, will the Home Secretary ensure that large- scale programmes, such as those referred to in recent revelations, are properly avowed at some point in the near future?

In conclusion, it seems to me that, as has already been said, and as the Home Secretary herself has suggested, we have a big opportunity. The deadline of December 2016 is approaching, when the current data retention powers will fall. Decisions must be taken—they simply cannot be ducked any longer—and they must be taken as consensually as possible, and on the basis of clear principles of necessity, transparency and proportionality. Surveillance powers are a necessary part of a liberal society, as we must have the ability to prevent criminals from curtailing the liberty of others to live their lives free from crime, but those powers must be based on evidence that they are both necessary and proportionate to the threat we face. I suggest that this House should not entertain proposals for significant, intrusive new laws based on assertion and rhetoric alone.

House of Lords Reform Bill

Debate between Tom Brake and Nick Clegg

Monday 3rd September 2012 Commons Chamber

[The Deputy Prime Minister]

I have set out my position 100 times already in the past hour.

[Tom Brake (Carshalton and Wallington) (LD)]

Will the Deputy Prime Minister speculate on how history will view Members of all parties of this House and the other place who overtly or covertly manoeuvred to block the reform of the House of Lords?

Oral Answers to Questions

Debate between Tom Brake and Nick Clegg

Tuesday 10th July 2012 Commons Chamber

[The Deputy Prime Minister]

Both the hon. Gentleman’s question and yesterday’s debate have revealed that House of Lords reform is immeasurably more controversial here than anywhere else in the rest of the country. The rest of the country thinks that there is a simple choice to be made—are we in favour of more democracy or less? Are we in favour of the simple principle that the people who make the laws of the land should be elected by the people who have to obey them? No one else thinks that is controversial, only the politicians, so why do we not just get on with it?

[Tom Brake (Carshalton and Wallington) (LD)]

What conclusions does the Deputy Prime Minister think the public will draw if this House is incapable, with or without a referendum, of reforming a House of Lords packed with prime ministerial appointees and hereditary peers?

[The Deputy Prime Minister]

We rightly take pride in our democratic traditions in this country. We send young servicemen and servicewomen to fight for the principle of democracy elsewhere in the world, and we tour the world talking to other countries about how they should instil greater democracy. I think the rest of the world would look at this great mother of Parliaments and ask why on earth it was not possible for us to practise what we preach.

Oral Answers to Questions

Debate between Tom Brake and Nick Clegg

Tuesday 7th February 2012 Commons Chamber

[The Deputy Prime Minister]

They liked that one.

As we have explained before, the Electoral Commission has made crystal clear that, given the knowledge and information available to the Liberal Democrat party at the time—well before my time as leader—the money was received in entirely good faith.

[Tom Brake (Carshalton and Wallington) (LD)]

What risks does the Deputy Prime Minister think are associated with any political party receiving 90% of its donations from one source, notably the trade unions?

[The Deputy Prime Minister]

I certainly think that there would be a significant reputational risk if that party were to table amendments and ask parliamentary questions written for it by that donor, as we learnt had been done last year. If that were the practice in any other party, members of the party concerned would be crying foul.

Oral Answers to Questions

Debate between Tom Brake and Nick Clegg

Tuesday 11th October 2011 Commons Chamber

[The Deputy Prime Minister]

As the hon. Lady knows, the electoral register currently has about 92% coverage, and we are doing everything we can, through data matching, the transitional arrangements I have described and some of the debates we have had here on whether or not to have opt-outs, to ensure that that level does not decrease significantly. It is a high level of registration compared with similar exercises in other parts of the democratic world and I hope that we keep those high standards.

[Tom Brake (Carshalton and Wallington) (LD)]

T8. The economic news from Europe is very troubling. Will the Deputy Prime Minister set out what he and his Government are doing to ensure that swift and decisive action is taken in relation to the eurozone crisis?

[The Deputy Prime Minister]

The Prime Minister, the Chancellor, I and others are of course in constant contact with Governments elsewhere—in the eurozone and, indeed, in other parts of the European Union. We have been quite clear that it is not our role to seek somehow to dictate what should happen, other than to say that the solution needs to be developed urgently; to be comprehensive and decisive; to deal with the Greek situation decisively; to create the means by which contagion can be stopped spreading from Greece to elsewhere in the eurozone; and to create binding rules so that fiscal disciplines in the eurozone are respected and banks are recapitalised. Further, and something on which Britain could really lead, we should work as 27, not as a fractured European Union, in order to increase competitiveness and to further liberalisation within the single market, because that is the way we will increase the European Union’s welfare in the future.