Investigatory Powers Bill (First sitting)

Victoria Atkins Excerpts

Thursday 24th March 2016 Public Bill Committees

[Mr Hayes]

Q As a follow up on that, obviously you appreciate that your recommendations on the operational case being made have been built in to what we are doing. Further to what you said about the Chairman of the ISC’s recognition of their proportionality and necessity, I suppose you would accept that any publication of that operational case will obviously be limited, because it is an operational case and as soon as you make it public to the point where it ceases to have value, it could compromise operations.

David Anderson: Yes, the agencies’ ability to protect us relies quite heavily on people not knowing exactly what it is they can and cannot do.

[Victoria Atkins (Louth and Horncastle) (Con)]

Q I will ask just a couple of questions, if I may, Mr Anderson. Looking at the operational case for bulk powers, the Home Office has stated:

“There is clear evidence that these capabilities have…played a significant part in every major counter terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since November 2014...enabled over 90% of the UK’s targeted military operations during the campaign in the south of Afghanistan…been essential to identifying 95% of the cyber-attacks on people and businesses in the UK discovered by the security and intelligence agencies over the last six months”.

They have also been of great use in serious organised crime and paedophilia investigations, as we know. Are those factors that you and others have taken into account when assessing whether we need bulk powers, and how critical they are to national security and serious organised crime investigations?

David Anderson: I saw and heard enough to persuade myself of the necessity of bulk interception powers and bulk data retention of the type we were describing—phone logs and emails and so on. I did not look at equipment interference, for example, because that was outside my remit, and the query that I raised on that earlier was really the same query that the Intelligence and Security Committee has raised. If you define the targeted powers so broadly as to encompass almost anything, what is the additional utility of a bulk power? I am not persuaded on that simply because I did not do the exercise.

[Victoria Atkins]

Q By way of conclusion, you gave evidence to the Joint Committee scrutinising the draft Bill in November 2015 and at that time you said it gave effect to 90% or more of the recommendations in your report entitled “A Question of Trust”. Now that the Government have responded to the Joint Committee’s report and made further amendments, how much closer is the Bill to your report’s recommendations?

David Anderson: If I may say so, I thought that it was an excellent report and I was very pleased to see that the Government had given effect to the great majority of those recommendations.

[Suella Fernandes]

Q I have two questions. On the double lock and the judicial review test, concerns were expressed by witnesses to the Joint Committee about two issues. The first is the access to evidence by the judges and by the Ministers or the Home Secretary in the process of considering warrants. What would be the access to evidence by both parties involved in the double lock? Would it be the same or different?

David Anderson: I would certainly assume that the judges would have access to all the evidence that the Home Secretary or the Secretary of State had access to. I believe I have actually had a private assurance that that would be the case. I am afraid I have not checked to see whether that is in the code of practice, but plainly it ought to be, because this is not a rubber-stamp and nor is it simply a test of rationality or process. If it needs to, it should involve a proper look into these issues of necessity and proportionality. I was delighted to note that the Foreign Secretary said as much when he wound up the debate on Second Reading last week.

--- Later in debate ---

[Peter Kyle (Hove) (Lab)]

Q I, too, am not a lawyer but, unlike Mr Hoare, I do not apologise for it. Mr King, it was quite striking when you gave a flavour of the quantity of data that is being harnessed. Do you know whether that has ever led to an unlawful arrest, or a wrongful arrest?

Eric King: No. At the moment we have almost no visibility on how our security and intelligence agencies work on a day-to-day basis with our National Crime Agency. We know that they co-operate very regularly and we know there is a lot of material that is shared around, particularly for organised crime circumstances. I imagine that lots of the relevant material is passed to the NCA and others, and that will lead to arrests and occasionally presumably also unlawful arrests. But no, that is not material that is in the public domain.

[Victoria Atkins]

Q Mr King, there was a phrase you used quite a few times during your evidence. That is, “We don’t know.” How long have you worked for the security services?

Eric King: I don’t work for the security services.

[Victoria Atkins]

Q What security clearance do you have?

Eric King: None.

[Victoria Atkins]

Q How many intercept warrants have you prepared or reviewed?

Eric King: None.

[Victoria Atkins]

Q So, it would be fair to say that there is a great deal about the workings of GCHQ and other security services that you simply do not know about.

Eric King: Yes. In my evidence that I wrote to the Joint Committee I set out my frustration at my inability to be able to probe at the heart of the issues on this. We are in a much stronger position now democratically, I believe, with so much more material that is available. That has led to court cases and the Investigatory Powers Tribunal that has found unlawful actions by GCHQ. Without that material being published, we would not have been successful in those cases. I wish there were more but I do not have it all, I am afraid.

[Victoria Atkins]

Q I am driven to ask, Mr King, against your evidence that you do not know much about how security services work, how many lives you are willing to sacrifice for your very pure plan of privacy?

Eric King: None. I do not think that any lives should be sacrificed for a pure view of privacy. We need both; we need security and privacy. Both are values that we hold in this society and are values that we should be ensuring that we get right in the Bill. That is why it is so important that we have long scrutiny on this because we should not simply provide an unlimited set of powers to our security and intelligence agencies. They must have some, and they must be formidable powers, but they need to be checked.

They need to be provided for by Parliament. We need to have proper authorisation and oversight for that. That has been my work for the past five years. So, no, while I do not hold a security clearance, it does allow me to come before you and talk about all the things that I do know. Regrettably, if I did hold a security clearance, I would not be able to be in that position.

[Matt Warman (Boston and Skegness) (Con)]

Q Building on that, the Joint Committee did ask for an operational case for bulk powers to be published, and that has been seen and assessed by the ISC who do have the security clearance that you do not have, who do have visibility on all of the things that you are not able to see. The ISC says that they are happy with that operational case. It seems to me that the more people know about this, the more comfortable they are with that operational case. I wonder whether you are questioning their judgment or simply saying that you disagree.

Eric King: No. It is certainly true that the more you see about some aspects of agency practice, you do get more reassured. Certainly, in the process of Investigatory Powers Tribunal cases that have taken place, I was pleased that there were areas that had safeguards when I did not originally think there were.

I have also been fantastically disappointed in other areas, where I thought there should have been very obvious safeguards, such as areas of legal professional privilege that were found wanting and unlawful by the IPT. I am afraid I have become a terrible judge on which bits I think the agencies have got right and which bits they have got wrong. I seem to be very poorly predicting it. On the operational case, I think the issue here is that we need a whole range of experts outside the ISC to be looking at this. I am not sure that it is the perfectly placed organisation or body to be looking at this. It has known about these powers and approved of them right the way through. I think that at this time, now that they are being put before Parliament plainly for the very first time, we should be looking to do what they have done in the US, which is to have an independent scrutiny of many of those cases, so that you can test them.

It is not enough simply to provide a list of cases where this worked. They need to be really looked at, because, as we found in the US, some powers that many thought would work, like the bulk acquisition of communications data, turned out not to be terribly effective. The 64 cases that the agencies in the US put forward, to say that these were powers that were needed, turned out to be false. Only one was of relevance, and it was not a terrorism case. So it is vitally important that we scrutinise them and have the time to do so.

--- Later in debate ---

[Joanna Cherry]

Q If the Government had given you more resources for more boots on the ground, would it have been possible for the security services perhaps to have had targeted surveillance on lower priority targets prior to this particular dreadful murder?

Lord Evans: There is no doubt that to some extent intelligence activity in counter-terrorism is scalable. What has happened since 9/11 is that the resources available to the Security Service and the other agencies have increased very considerably under both Governments—or all three Governments, if you want to put it in those terms. We have therefore probably got within the Security Service three or four times as much resource as we had previously.

There has been a very considerable uplift, but it is not just a question of people. Importantly, it is also a question of powers. Your capability to cover and monitor threats is not very often, although it sometimes is, a matter of boots on the ground; it is a matter of the overall toolbox available. One of the attractions of digital intelligence and the sort of powers that are outlined in the Bill is that it enables considerable coverage of threats without having to deploy lots and lots of people following people around and so on, which in some ways would be more intrusive.

[Victoria Atkins]

Q We talk about the security services and the other agencies as block organisations, but of course the quality and effectiveness of an organisation depend on the people who make up that organisation. Could you give us, as far as you are able, an assessment of the qualities and character of the people who work for the agencies that you have led?

Nigel Inkster: In the United Kingdom, we like to maintain the position that intelligence and security work is a high-status profession. We look for quality people who might otherwise go into areas such as the law, merchant banking and that sort of thing. That is the level that we are pitching for, and that is not always the case around the world. In that regard, the United Kingdom distinguishes itself in the right way, in my view. We have very well educated and well motivated people. In my service, for example, we had people joining us in the wake of 9/11 who had taken very significant salary cuts and left high-paid jobs in the City to come and do this work precisely because they were motivated by and committed for what we regarded as the right reasons.

During my time in SIS, I was responsible inter alia for compliance with all the different oversight mechanisms to which we were subject. I had extremely long conversations with the various commissioners responsible for overseeing those activities. In all cases, their judgment was that the people we employed were highly motivated, took their responsibilities seriously and understood the powers that they had, the need to act lawfully and the need to use those powers in a wise, measured and proportionate manner. I think we are very fortunate as a country.

Lord Evans: I would agree with that. I think we have employed people who are intellectually able, are motivated by public service and are ethically sensitive. It might be useful to the Committee to invite the Clerk to find comments made by Lord Brown of Eaton-under-Heywood, a former Supreme Court judge and former intelligence commissioner, when the 2015 Counter-Terrorism and Security Bill was being discussed in the House of Lords. He gave a very, very strong endorsement of his experience of the quality and integrity of the members of the intelligence services that he had seen. If you want an independent voice, rather than a voice from inside the agencies, that might be worth finding.

[Victoria Atkins]

Q In the nightmare scenario that there was a wrong ’un in the agencies, how would they be able to find that person and prevent them from misusing their powers?

Lord Evans: It is inevitably the case that you cannot ensure that everybody in the service is brilliant and saintly, because it’s human nature. As a result, we maintain a strong, continuing vetting procedure. Your vetting is reviewed on a regular basis and it is built into the way we do our appraisal to raise security-related issues. Also, particularly in the management of access to sensitive information, there are arrangements to ensure independent oversight of what is being done on the systems that the service has in place. In the same way that, if you were running a trading system in a bank or something, you would monitor the activities of the traders to try to identify improper activity, something similar is applied to the systems operating within the intelligence services. We rely on good recruitment and on continuing security vetting, but we also have some wired-in ways of trying to identify misuse of official resources for personal use or whatever.

[Peter Kyle]

Q I would like to turn your attention from the efficacy and professionalism of your staff to that of the politicians you have had to deal with over the years. You have had to have relationships with several different Home Secretaries in your time. Have you always been able to get the time and attention you need from each of them at the moment at which you need it?

Lord Evans: I served under four Home Secretaries from both the Labour party and the Conservative party. I saw the Home Secretary without fail once a week, and quite often twice a week. All of them took a great interest in the work that the service was doing and its operations, and were regularly briefed. From that point of view, I think we were given very good airtime. In addition to that, there is the question of the time to look at warrants. They were not presented by the director general but were processed and nominally presented by the Home Secretary’s officials, so on top of that there was a lot of time spent by Home Secretaries on warrants. I can say, without going into great detail, that they did not all go through with a tick. Occasionally, warrants would come back and they would say, “Actually, the Home Secretary doesn’t want to sign this.”