Investigatory Powers Bill

Debate between Tom Tugendhat and Andy Burnham

Tuesday 15th March 2016 Commons Chamber

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.