Investigatory Powers Bill

Tom Tugendhat Excerpts

Tuesday 15th March 2016 Commons Chamber

[Mrs May]

I thank my hon. Friend for his comments. It is important that we have the balance right. Many people have said, “Just have judicial authorisation”, and some people still believe that the authorisation should be made by the Secretary of State. By having both, we do not lose democratic accountability, but we add the independent judicial authorisation.

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

Will the Home Secretary give way?

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[Andy Burnham]

I think the Home Secretary has indicated that there would be, because her decision would be subject to the double lock, including judicial approval. My point is, why should the Prime Minister be only consulted by the Home Secretary as part of that process? It seems to me that there is a role for the Prime Minister finally to approve any such warrant, and I believe the Bill could be strengthened in that regard.

There is also the question of journalists. The National Union of Journalists believes that the Bill weakens existing provisions. Clause 68, which makes the only reference to journalists in the entire Bill, sets out a judicial process for the revelation of a source. Its concern is that journalists are wide open to other powers in the Bill. Given the degree of trust people need to raise concerns via the political, legal or media route, and given the importance of that to democracy, I think the Government need to do further work in this area to win the trust and support of those crucial professions.

Our second area of concern relates to the thresholds for use of the powers. The Bill creates a range of powers that vary in intrusiveness, from use of communications data and internet connection records at one end to intercept, equipment interference and bulk powers at the other end. There is a real concern that the thresholds for them are either too low or too vague.

Let us take internet connection records. The Home Secretary has previously described ICRs as “the modern equivalent” of the “itemised phone bill”, and the Government intend them to be made available on the same basis—that is, for the detection or prevention of any crime. The Joint Committee noted, however, that this is not a helpful description or comparison. ICRs will reveal much more about somebody than an itemised phone bill. They are closer to an itinerary, revealing places that people have visited.

The question for the House is this: is it acceptable for this level of personal information to be accessed in connection with any crime—antisocial behaviour or motoring offences, for instance? I do not believe it is, and I think a higher hurdle is needed. This is a critical point that the Government will need to answer if they are to secure wider public support for their Bill. People have legitimate fears that if ICRs become the common currency in law enforcement, much more information will be circulating about them, with the potential for it to be misused.

The Government need to tell us more about why they need this new power and they need to set a stricter test for its use—in connection with the prevention or detection of more serious crime or a serious incident such as a missing person, for instance. That is what I think the hurdle should be: serious crime rather than any crime, and I would welcome hearing the Home Secretary’s response on that point.

At the other end of the scale, the justification for using the most intrusive powers in the Bill is on grounds of “national security” or, as the Home Secretary said, “economic well-being”. While I understand the need for operational flexibility, there is a long-standing concern that those tests are far too broad. There is a feeling that “national security” has been used to cover a multitude of sins in the past. Let us remember that official papers from the domestic building workers’ strike in English market towns in 1972 are still being withheld on grounds of “national security”! How on earth could that possibly be justified?

[Tom Tugendhat]

The right hon. Gentleman is bringing up a point that relates to proportionality, but it strikes me as odd that he has rammed it home so strongly when the Bill itself mentions proportionality and the oversight of the Information Commissioner includes looking at proportionality. The right hon. Gentleman is going on and on about it, but it is actually in the Bill.

[Andy Burnham]

I do not believe it is. I put it to the hon. Gentleman that national security is a very broad term that is not defined in the Bill. The Joint Committee encouraged the Government to define it in order to give people greater security. As I have just said, activities have been carried out in the past under the banner of national security that I think he would struggle to justify as such.

The problem with the “economic well-being” test is that it potentially opens up a much wider range of activities to the most intrusive powers. The Bill states that matters of economic well-being must be only “relevant” to national security, not directly connected to it, as the Home Secretary seems to imply. This raises the issue of what extra activities the Government want to cover under this banner that are not covered by national security. A cyber-attack on the City of London has been mentioned, but surely that would already be covered by national security provisions.

Let me put two suggestions to the Home Secretary. First, I suggest that she accept the Joint Committee’s invitation to define “national security” more explicitly. Alongside terrorism and serious crime, it could include attacks on the country’s critical or commercial infrastructure. Secondly, if she were to do that, the economic well-being test could be dropped altogether. That would build reassurance among Opposition Members that there could be no targeting in future of law-abiding trades unionists, as we have seen happening in the past.

The third area of concern is with ICRs themselves—both their content and their use.

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[Andy Burnham]

My hon. Friend has put it very well. It is a fact that trade unionists and other campaigners have been subject, over time, to inappropriate use of investigatory powers. If the Conservatives do not understand that, they need to go away and look into the issues. They need to get at the full truth about Orgreave and Shrewsbury, so that they can understand why some people who do not share their political views on life have a different feeling about legislation of this kind. If they did go away and do that, they would probably find that they could reassure people, and that there would be more public support for the Bill.

[Tom Tugendhat]

rose—

[Andy Burnham]

I am going to make some more progress now.

As I understand it, the intention of the authorities in building internet connection records is to list domains visited, but not uniform resource locators. There would not be a web-browsing history, as the Home Secretary said. The ICRs would show the “front doors” of sites that had been visited online, but not where people went when they were inside. That will give some reassurance to people who fear something more extensive, but the definition of ICRs in clause 54 remains extremely vague and broad. I see nothing that would prevent them from becoming much more detailed and intrusive over time, as technology evolves. The draft code of practice gives an illustration of what would be included, but it does not build confidence, as it acknowledges that information may vary from provider to provider.

It would help everyone if the Government set out a much stricter definition of what can and cannot be included in ICRs, and, in particular, specified that they can include domains but not URLs. The current confusion about ICRs is unhelpful and clouds the debate about the Bill. It needs to be cleared up.

As for the use of ICRs, schedule 4 sets out far too broad a range of public bodies that will be able to access them. It seems to me that the net has been cast much too widely. Is it really necessary for the Food Standards Agency and the Gambling Commission to have powers to access an individual’s internet connection record? I will be testing the Government on that. If there were a suspicion of serious criminality in respect of the food chain or a betting syndicate, surely it would be better to refer it to the police at that point. I must say to the Home Secretary that we shall want to see a much reduced list before this part of the Bill becomes acceptable to us.

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[Andy Burnham]

I thank the hon. and learned Lady for the law tutorial. Her point may be one for Committee rather than Second Reading. However, I did refer to it earlier. The Bill uses the word “relevant”; it does not use the words “directly linked to national security”. She pulls a face, but I am sure that I speak for every Labour Member when I say that there is no room for ambiguity when it comes to these matters. The Government must be absolutely clear about what they mean. We have seen trade unionists targeted in the past on the basis of similar justifications, and we will not allow it to happen again.

[Tom Tugendhat]

The right hon. Gentleman wants the Home Secretary to draft a law that envisages every new provision, every change in technology, every change in crime and every change in threat over the next 50 or 100 years. The Home Secretary cannot do that and nor can the right hon. Gentleman, which is why the Home Secretary has instead introduced a system of oversight, proportionality and judicial checks and balances, in order to provide the flexibility that is necessary for our nation to have security in a changing world.

[Andy Burnham]

I disagree. I am making a legitimate point about which we feel strongly. I am saying that the most intrusive powers in the Bill should be strictly limited to national security. The hon. Gentleman has a different view, but I believe that serious crime and national security should be the strictly limited grounds on which the most intrusive warrants are applied for. I hope that he will approach the issue in a spirit similar to the one in which I have approached it: I hope that he will look into the concern that I have raised in more detail and try to understand why Labour Members feel so strongly about it.

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[Mr Owen Paterson (North Shropshire) (Con)]

It is a pleasure to follow the hon. Member for Walthamstow (Stella Creasy) and her interesting comments.

The Home Secretary and the shadow Home Secretary both, quite correctly, began by paying tribute to the prison officer from Northern Ireland who died today after a cowardly attack on 4 March. We should remember article 2 of the European convention on human rights:

“Everyone’s right to life shall be protected by law.”

I respect the hideous difficulties Ministers have had in drafting the Bill, bringing together the conflicts between liberty and security. I fully understand that there are calls for improved scrutiny associated with greater powers. However, we must take great care to avoid damaging the effectiveness of operational decision making which protects our citizens. Effective operations rely on the capacity for operational agility in the face of ruthless and innovative opponents. After a decision has been made, I am firmly in favour of a more rigorous and rapid review process.

First, I would like to state that I regarded signing warrants as a key responsibility when I took over as Secretary of State for Northern Ireland. Sadly, there were elements in the republican community who would not accept the settlement we had inherited from the previous Labour Government and were determined to pursue their aims by terrorism. We rapidly reequipped various agencies at considerable public expense. I was fully aware that our security services, facing a deterioration in the security situation and a raised threat level, could operate efficiently only if decisions were made rapidly from the top. I made clear that I was always to be disturbed at any time if an urgent decision was required. The vast majority of warrants were signed in an orderly manner, in regular slots built into my diary; those slots were a priority. I was occasionally woken up very early in the morning and asked to make an extremely urgent decision. I am deeply concerned that the proposal to have a dual lock, involving endorsement by a commissioner, will bring an element of delay and confusion to effective operational decisions. I understand that there are calls for more accountability and scrutiny of these vital but necessarily confidential decisions, but I believe very strongly that only a democratically elected Secretary of State, who is ultimately accountable to the House of Commons, should make such decisions.

[Tom Tugendhat]

Does my right hon. Friend agree that the definition of “urgent” needs to be one for a Minister, not a judge, and that therefore there should be no possibility of later applications for judicial review of what is urgent?

[Mr Paterson]

Yes, I entirely agree that the whole decision should be in the hands of the democratically elected Secretary of State, responsible here, but by all means let there be the most rigorous and rapid review afterwards by a learned judge.

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

This debate is very much about striking a balance between privacy and security, as I understand very well. Indeed, my father wrote the book on privacy, and it is now in its third edition—if anybody would like it, it is selling for about £200. However, I have spent much of my life working on the latter.

Security is very much at the heart of what I hope our Government are bringing to the nation—not just economic security but national security. This Bill goes a long way towards achieving that. I am extremely pleased, however, that it is grounded not just in that principle but in the principle of proportionality. Indeed, proportionality is mentioned 54 times in this Bill; it is very much at its heart. I am sorry that the right hon. Member for Leigh (Andy Burnham) missed that point.

The question of proportionality relates to the bulk data powers, which are about not simply collecting data on targets but protection. One of the points that has largely been missed, although my hon. Friend the Member for Cheltenham (Alex Chalk) raised it strongly, is that our agencies do much more than just look after our security in the offensive sense—they also look after it defensively. GCHQ has done a huge amount to protect our country from cybercrime. Indeed, 95% of all cyber-attacks in the United Kingdom have been defended against on the basis of bulk data.

In an important speech at the Massachusetts Institute of Technology only last week, the head of GCHQ, Mr Robert Hannigan, commented on the need to provide proper encryption to our society in order to allow the free economic trade that we have enjoyed for so long. He also clearly stated that he was not in favour of “backdoors”, which were mentioned by my hon. Friend the Member for Salisbury (John Glen), because they are not a protection but a threat. He said:

“I am not in favour of banning encryption just to avoid doubt. Nor am I asking for mandatory backdoors. I am puzzled by the caricatures in the current debate, where almost every attempt to tackle the misuse of encryption by criminals and terrorists is seen as a ‘backdoor’. It is an over-used metaphor, or at least mis-applied in many cases, and I think it illustrates the confusion of the ethical debate in what is a highly-charged and technically complex area.”

Having used the powers in the former investigatory powers Acts for operations in Afghanistan targeting those who were placing bombs to try to kill fellow British servicemen, I am glad that this Bill is updating those provisions. I am also glad to see that the former Director of Public Prosecutions, who has wide experience in this field, will respond for the Opposition. His experience does credit to this House, and I am delighted to see him here.

If I may be allowed just one minor criticism, it is that the word “urgent” must be tightened. The Secretary of State must be the sole decider of what is an urgent request and an urgent need, and not a judge later on, because only she or he can have that knowledge.