Reports into Investigatory Powers

Tom Tugendhat Excerpts

Thursday 25th June 2015 Commons Chamber

[Emily Thornberry (Islington South and Finsbury) (Lab)]

I may speak very quickly to get through everything I want to say, Madam Deputy Speaker.

I will refer to the reports by the ISC and the independent reviewer of terrorism legislation, not the two later reports, which we have not really had an opportunity to read or consider properly. The report by David Anderson, QC, aptly entitled “A Question of Trust”, has rightly been complimented in the House for its thoroughness and rigour. Perhaps we should give a warning to those who might want to read it, though—do not drop it on your foot. Anderson’s recommendation that the law on investigatory powers should be made both comprehensive and comprehensible has also been widely endorsed, and it is surely right. If it is unintelligible to a lay reader, it will seem esoteric and inaccessible to all and will therefore not inspire public confidence.

I would like to focus on the main bone of contention, which is who should have authority to grant permission for access to the content of people’s private communications. The ISC’s report, for all its strengths, offers an insider’s view. The Home Secretary no doubt found much more to agree with in that report than in others, not least because she found herself extensively quoted in it. After hearing evidence that, in my view, was heavily weighted towards Ministers and officials from the security services, the ISC came down squarely on the side of the status quo. It concluded that the current system of ministerial authorisation of interception warrants should be maintained. I listened with some interest to the comments of the right hon. Member for Cities of London and Westminster (Mark Field) on that issue.

The Committee appears to have reached its conclusion based almost wholly on the recommendations of Ministers themselves, with the concerns of civil liberties groups being given comparatively short shrift. In concluding that Ministers were better equipped than judges to make decisions on warrants, the Committee relied on arguments some of which, in my view, were based on flawed logic. I will give one example. It argued that,

“Ministers are able to take into account the wider context of each warrant application and the risks involved, whereas judges can only decide whether a warrant application is legally compliant.”

The example that the Committee provided by way of support for that rather extraordinary claim was the diplomatic fracas following the allegations in 2013 that the US National Security Agency had tapped the German Chancellor’s phone. The ISC’s less than subtle implication was that whereas a Minister would have the wisdom to reject such an application, judges would be too clueless to understand the requirements of international diplomacy and could not possibly be trusted to understand the diplomatic implications of such a decision.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

Does the hon. Lady not accept that Ministers and judges have a different role? The report recognises that the role of a Minister is to represent Her Majesty’s Government across a broad swathe of areas, including international policy, and the role of a judge is to adjudicate on a question of law.

[Emily Thornberry]

Yes, of course, but it underestimates the subtle role that judges have come to play in recent years. For example, the development of administrative law has meant that judges have to be able to balance a number of factors. Are we essentially saying that the only way for Ministers to have some form of oversight of the security services is by giving permission for intercepts? There must be greater oversight than that. For example, if there was a suggestion that—I am plucking an idea from the air—we should tap the phone of the President of France, are we saying that the Home Secretary would not be aware of it if there were a system of applying to the court? If that is our current system, we need to examine it carefully. We need to ensure that our Ministers have some form of oversight of the security services, but that does not preclude the need for judges as a back-up. Surely Ministers would welcome the idea that they can not only make their own judgment but have it backed up with the authority of a judge.

The caricature of judges as being completely out of the world does not bear up, in my experience. I have to declare an interest at this point—I am married to a judge, and there have been times when my husband has been duty judge. Although the phone has not necessarily been passed to him while he has been in the bath, it is quite right that judges are flexible and can move quickly to make decisions as and when necessary.

--- Later in debate ---

[Tom Tugendhat]

rose—

[Emily Thornberry]

I have already given way to the hon. Gentleman, and I want to try to keep to your strictures, Madam Deputy Speaker. I am not doing very well—I have only three minutes left if I am to do so. I suspect that I might not, but I will go as fast as I can.

Judges do not live in a vacuum. Their job requires them to have some form of judgment. There have been great challenges to the establishment, and the public have great scepticism about not only politics but all sorts of pillars of the establishment. I find it interesting that the judiciary is one of the few areas that are not challenged in the same way. Whenever a difficult issue needs to be decided on or there has been a crisis, it does not take people long to call for a full judicial inquiry. When we are talking about trust in the highly contentious field of investigatory powers, it seems to me that it would be a mistake for Ministers not to call for the back-up of the judiciary. When we are considering a radical overhaul of the legislative and regulatory framework, we need to be bold.

There is great sense in David Anderson’s report. He talks about the establishment of a new body, which is the backbone of his recommendations, not just one of many proposals that he has put forward. It is absolutely essential, and last time we discussed the matter in this place I was a little alarmed to hear the Home Secretary refer to it as being only one of many recommendations. Actually, the body features in about 50 of the recommendations, so I hope that it is not pushed aside as being a peripheral issue. Clearly, it is not.

Transparency is another important part of David Anderson’s report. The new commission would not only take on responsibility for approving warrants but would incorporate the retrospective audit functions currently exercised by the interception of communications commissioner and the intelligence services commissioner. Those officers currently fit into what I see as a deeply foggy regulatory arrangement, which in many ways is reminiscent of Wall Street before the crash, when not a single one of the half a dozen or so agencies that were given the job of regulating and supervising the banks seemed to be able to exert its authority sufficiently or even know what was going on under its nose, let alone have the power to stop it.

The Home Secretary said to the ISC at that stage that it was important for the decision to be taken by somebody who is democratically accountable to the public. I understand that, but the reality is that thousands of warrants for interception are issued under RIPA. We do not know what proportion of applications the Home Secretary does not approve when they appear on her desk, because both she and successive Governments have refused to say. The current Home Secretary admitted in evidence to the ISC that the proportion of applications she approves is very high. That is not surprising, given that reviewing such applications takes up such a significant proportion of her day and it is not as though she does not have lots of other things to do. She relies heavily on the judgment of her officials—we would, of course, expect her to do so—but we have to be careful that it is not a rubber-stamping exercise. I am sure it is not, but we have to be mindful about what it looks like when we are considering a question of trust. Let us look at the reality before deciding whether a change would be a bad thing.

Taken together, David Anderson’s proposals represent a radical overhaul of the existing framework. I do not believe they are the worse for that. When looking at the report, we must go back and say to ourselves that, in the end, we need a radical overhaul. We need to bring the public with us. We need to be unafraid to bring in additional expertise. A clearer framework in which we can have traditional oversight of such sensitive things as intercepts must be a good thing.