Reports into Investigatory Powers

Yvette Cooper Excerpts

Thursday 25th June 2015 Commons Chamber

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

I thank the Home Secretary for her thoughtful speech and for scheduling the debate so swiftly after the publication of David Anderson’s report. I called for the debate in response to the statement two weeks ago and it has been swiftly delivered.

I should also apologise to the House, as I already have to the Home Secretary and to you, Mr Speaker, for the fact that I cannot be here for the closing speeches. It is my daughter’s school graduation, so I hope the House will forgive me for being there instead.

This will be a good debate and it is an opportunity to debate the right legal framework to protect our liberty and security in the digital age. I join the Home Secretary in paying tribute to the quiet heroism of our intelligence services, agents and counter-terror police. Their work is necessarily secret and their successes are rarely reported, but their success is measured, bluntly, by a lack of column inches and TV headlines. We are rightly all proud of them.

There is also no doubt that as the world becomes increasingly connected and as we increasingly rely on smartphones, tablets and other technology to communicate and organise our lives, that has repercussions for the fight against terrorism and serious and organised crime. David Anderson’s report contains the startling fact that in 1975 there were 1 billion connected places, that by 2010 there were 5 billion connected people and that by 2020 there will be 50 billion connected devices.

Our lives are increasingly online, and with that opportunity come great challenges. For example, we know that Twitter is a lot of fun for many people, including many Members of this House—although, perhaps, not yet the Home Secretary—but it has also been used to connect extremists and recruiters with young people in the United Kingdom, including the young girls who left for Syria from Bethnal Green earlier this year. New devices, mail services and apps are used to help us all keep in touch, build amazing new businesses and organise our lives, but also by some to commit crimes and abuse. Online crime has risen exponentially and we have also seen awful cases of online child abuse that we are still failing to address as a country.

We have also seen growing problems with organised cyber-attacks for major companies, infrastructure and the Government. The operations of the police and intelligence agencies need to be able to keep up with these new forms of crime and national security threats, but at the same time the checks and balances, safeguards and oversight that are needed must keep up with new technology. We have a long and proud tradition in Britain of having those checks, balances and safeguards for our liberty and our privacy. We must ensure that action by the state is proportionate, so those checks and balances must keep up with the fast-moving changing technology.

We have argued for some time that the legal framework is out of date. The Regulation of Investigatory Powers Act is, in David Anderson’s words,

“incomprehensible to all but a tiny band of initiates”

and in the long run that means that it is “intolerable”. Its interaction with previous legislation, including the Telecommunications Act 1984, is baffling, too, and even after being briefed on some of the work that the agencies do and having studied the legislation over seven years—often with a wet towel wrapped around my head, which was the only thing that enabled me to get my head around it even temporarily—I still find it hard to be clear about what is possible and what is not under the law as it stands and about the extent of existing safeguards. That is unsustainable as a framework for legitimacy for the vital work the agencies do, which is why we have called for some time for a review of RIPA, why we argued for it in the debates last summer and why we have welcomed the Government’s agreement to ask David Anderson to produce this report.

The report is extremely thorough and ranges from ideas of privacy in ancient Babylonia to what Facebook’s Mark Zuckerberg, the founder of a rather different kind of empire, thinks of the topic. It provides us with an opportunity for Parliament, civil society, the intelligence community, law enforcement, communication providers and, crucially, the public properly to consider the powers and safeguards we need.

As David Anderson recently said:

“The threat that I see of not accepting my recommendations, or recommendations along these lines is that people become disenchanted with the whole business of intelligence gathering. They believe some of the wilder allegations…that the state is reading into people’s emails the whole time when patently it isn’t. If this sense of disillusionment and disenchantment is perpetuated and spreads further then I think both law enforcement and intelligence lose the public confidence that they actually need if they are going to do an effective job.”

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

My right hon. Friend is making a good and comprehensive speech. Is it not appropriate that David Anderson’s report is entitled “A Question of Trust”? Surely that is one of the most important things in bringing the public with us on this issue.

[Yvette Cooper]

My hon. Friend is exactly right. There is strong support for the work of the intelligence agencies and the work they do in Britain, which has historically always been the case, but we should never take that for granted. It would not be fair on the intelligence agencies to take it for granted, so maintaining that sense of trust and confidence across the whole of society and not simply across the majority of people is extremely important for the work that they do. If we are to protect both our liberty and security in a democracy, we need to achieve consent for and understanding of the law and it is not just those who are concerned about surveillance who value greater clarity. It is also an essential mission of our intelligence agencies as part of defending democracy and protecting liberty and security.

The Home Secretary has been clear that there is no doubt that investigatory powers are vital in confronting terrorism, child abuse and other serious and organised crime. During the Home Secretary’s statement two weeks ago, I mentioned the awful case cited in David Anderson’s report in which communications data were used, rightly, to stop the abuse of three children who were all less than four years old. There are other cases. For example, Operation Overt dealt with the largest and most serious terrorist plot we have ever faced. Between 2008 and 2010, 10 individuals were convicted of plotting to blow up multiple transatlantic airliners. A key part of the evidence that brought the plotters to justice was coded conversations by email between the conspirators and extremists abroad in which they discussed the preparation for their attacks and the selection of targets.

It is clear from the review and other evidence that the powers passed through the Data Retention and Investigatory Powers Act 2014 last summer are essential and must be renewed, and will need to be renewed in good time before the sunset clause at the end of next year. It is also right, however, that we ensure that the legal framework that governs them is updated so that it properly reflects the needs of security and the need for safeguards.

In 2012, the Home Secretary made proposals in the draft Communications Data Bill that would have gone much further than the current legislation. I argued at the time that there were serious problems with the Bill, because it put too much power in the hands of the Home Secretary. The Joint Committee set up to scrutinise the draft Bill also, rightly, raised substantial concerns. David Anderson’s report makes it clear that he does not think that the draft Bill was the right approach. He noted that the first clause was “excessively broad”. The important question of IP addresses, which was encompassed in the draft Bill, has now been dealt with in other legislation. On weblogs, which the Home Office said at the time it wanted to pursue, David Anderson concluded that he

“was not presented with a detailed or unified case”

on the viability, practicalities or legal considerations.

On perhaps the most significant and the most controversial measure in the draft Bill—requiring internet service providers to hold huge amounts of third-party data—he commented:

“I did not get the sense that this was judged to be the priority that it once was, even within law enforcement”,

and he concluded:

“Accordingly…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, there has been full consultation with CSPs and the various legal and technical issues have been fully bottomed out. None of those conditions appears to me to be currently satisfied.”

Experts have also expressed substantial concerns about encryption and the cost and proportionality of the proposals.

Where David Anderson and the agencies confirm that there is a problem is in ensuring that companies whose headquarters are overseas comply with UK law, particularly for data and communications that involve those who are living and operating in the UK and those who pose threats to the UK. The Home Secretary referred to the report by Nigel Sheinwald, whose work is vital because, as the agencies and the Home Secretary recognise, UK law is only part of the answer; legal and diplomatic arrangements with other countries are immensely important. In fact, there is a growing range of views that the proposals in the draft Communications Data Bill were not the right way to deal with that genuine and significant problem in relation to companies based overseas.

On that basis, I ask the Home Secretary to confirm that she has dropped the original draft Communications Data Bill and is starting with a fresh approach. I think it would help our debate in this place and the development of future proposals that should balance the appropriate powers and the appropriate safeguards. Will she confirm that that draft Bill has been dropped and a new approach will be taken?

[Mrs May]

After the Joint Committee that scrutinised that draft Bill had done its work, we made it clear that we would take on board in principle the various recommendations the Committee made. Obviously, David Anderson’s report refers to some of the issues in the draft Communications Data Bill, so we will have to look at that in the context of subsequent proposals. We were clear that we would accept all the principles that that Committee set out, including that the original draft Communications Data Bill, which was an attempt to future-proof our legislation, was too wide ranging.

--- Later in debate ---

[Yvette Cooper]

I thank the Home Secretary for that reassurance that the Government agree that the old draft Bill was too wide ranging. We look forward to the replacement proposals and hope they will meet the assessment test set out by David Anderson, whose report is pretty comprehensive and well judged on these matters.

I also warmly welcome David Anderson’s recommendations for a fundamental overhaul of the commissioner system and the establishment of a new body, the independent surveillance and intelligence commission. The current commissioner system, although undoubtedly staffed by excellent people who have taken their roles forward, is too low profile and not substantial enough in performing a vital oversight role. It is hard for the public to assess where oversight properly lies. When one considers that we regulate our TV channels in a more high-profile and systematic way than our intelligence agencies, it is clear that reform is needed.

The new body would have supervisory responsibility and aim to build public trust. I would like it also to have a role in working with the Home Secretary on a suitable process for transparency, where that is possible in line with operational requirements, about both the law and our country’s capability. David Anderson’s report calls for greater public avowal and transparency about capabilities and legal powers. While everyone understands that many national security operations need to be secret to be effective, I know the Home Secretary will consider that recommendation closely, because sufficient transparency is of course needed if we in Parliament are to be able to take responsible decisions and get the legislation right.

The report recommends transforming the system of authorisation for interception warrants. The proposals on judicial authorisation are among the most significant reforms to the framework that David Anderson proposes. There is precedent: a system of judicial approval by commissioners exists for the police in relation to property interference, intrusive surveillance and long-term undercover operations. Also, as the report notes, the UK is an outlier among the “Five Eyes” states—the others are Australia, Canada, New Zealand and the USA—in not having prior judicial authorisation of interceptions of communications.

Importantly for the safety and security of our country, such a provision could go some way to solving one of the most significant challenges our agencies face: getting co-operation from communications companies based in the United States. In his report, David Anderson states:

“One major company went so far as to suggest that if the UK introduced judicial authorisation, more cooperation would be forthcoming, though I was not left with the impression that this was a universal view.”

He adds that

“US companies…find it difficult to understand why they should honour a warrant signed by the Secretary of State”

when the US has a system of judicial authorisation of warrants. So there are pragmatic considerations as well as constitutional considerations for us in determining what impact increasing judicial authorisation might have on that greater co-operation involving overseas companies.

Of course the detail must be right and reforms should not adversely affect the relationship between the Executive and the judiciary in relation to other aspects of Government powers. They should also recognise the importance of the Home Secretary’s role in determining what the threats are to national security, rather than leave such an important task to the judiciary. However, it should be possible to make those reforms, and I believe that now is the right time to introduce judicial authorisation into the process. Clearly, there are different ways of doing it—for example, it would be possible to have different frameworks for different kinds of warrant. David Anderson recognises that there would be differences in relation to sensitive missions that affect other countries and our relationships with them. Clearly, rather than leave such cases to a purely judicial process, such cases would require decisions to be made by the Foreign Secretary, who is accountable to Parliament for those sensitive relationships with other Governments.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

How does the right hon. Lady reconcile the need to take account of the wider political construct with the duty of the judiciary to act according to the law? Surely she is making a powerful argument for the status quo.

[Yvette Cooper]

No, I am not. I am part way through an argument that there are different kinds of warrant and different circumstances. In cases involving foreign affairs, where sensitive relationships with other Governments may be at stake, the Executive clearly have an important role to play; they cannot be seen simply as judicial matters. However, there are other kinds of warrant—for example, intercept warrants for the purposes of tackling serious and organised crime, where if the action was not intercept, but was instead knocking down someone’s door and breaking into their home, authorisation would be an entirely judicial process. There are significant questions about why intercept in the interests of pursuing serious and organised crime should have no judicial authorisation, whereas knocking down somebody’s door should have judicial authorisation.

That is why I think there is a strong case for introducing judicial authorisation to provide a clearer system of separation of Executive and judiciary and to introduce clearer checks and balances into the process. It does have to be done in the right way and there will be different considerations around crime and national security and foreign affairs, but I believe it is possible because other countries manage it. If we were the only country in the “Five Eyes” that did not have a process of judicial authorisation, even though we have similar intercept arrangements, that would pose a big question for us. Those who simply defend the status quo need to explain why they think the arrangements in all those other countries are inadequate and worse than ours, given the added legitimacy that some judicial authorisation processes should bring.

I recognise the complexity here; that is why it is wise that we hold this debate now, in advance of the Government making their final decisions on the issue and setting out their proposals. It is also wise that we have a period of consultation on the draft legislation, so that people can table amendments and have these debates. However, I do not see why judicial authorisation need threaten or jeopardise the work of the agencies—quite the reverse. If it is a way to provide greater legitimacy, and support from overseas, for this work, it could add strongly to the process, and to agencies’ work.

On the legislative process, I welcome the Home Secretary’s proposal for a period of proper reflection and discussion on the detail before final votes are taken in Parliament. That is the right approach. We are keen to continue discussions with her on this subject, and I welcome the briefing that she provided for me to enable us to do that. When the Snowden leaks first appeared in the media, there was a sense that Parliament was not debating these issues, that the Government were not responding, and that other countries were having a more informed and up-to-date debate about the response and the processes.

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

On the subject of having a more informed debate, does the right hon. Lady agree that the Sheinwald report, redacted if necessary, should be published? Many believe that its proposals, including on international treaties, would do away with the need for some of what is proposed for any investigatory powers Bill.

[Yvette Cooper]

I have not seen the Sheinwald report or had prior briefing on it, so I could not say how much redaction would be needed, but the right hon. Gentleman is right that the more transparency we can have in this debate, the better, so I urge the Government to consider allowing maximum transparency in this regard, to the extent possible, given the operational sensitivities and our relationship with the US Government on this. Clearly, the more we can look at the detail of alternative ways of providing the powers, safeguards and legitimacy needed, the better, and the better informed the parliamentary debate will be.

The initial debates and the response from the Government were not sufficient. However, we have since had reports from the Intelligence and Security Committee and David Anderson, and we have another forthcoming external report from the Royal United Services Institute for Defence Studies. This is the opportunity for Parliament to make sure that we have a proper updated response on the complexities of the digital age and how we maintain our security and liberty in it. More safeguards and checks and balances are needed, but it is also important that our intelligence agencies can deal with the serious and growing threats that the Home Secretary talked about. We need to make sure that our talented men and women in the agencies can face those real and serious threats, but also have legitimacy for the work that they do, and the continued confidence of the public. That is in all our interests.

In a democracy, our liberty and security are the targets of terrorists who seek to harm and divide us. Liberal democracy will triumph over extremism and tyranny, but for it to do so, we need to strengthen ourselves by renewing our security and our liberty. The Anderson report helps us to have a debate about how best we do that to protect our democracy.

[Several hon. Members]

rose—