4 pm
Stella Creasy (Walthamstow) (Lab/Co-op): A comment often made to explain why political events go on for so long is that, although everything that needs to be said has been said, not everybody has yet said it. In the spirit of trying to offer something different to this debate, I want to speak as a member of the Science and Technology Committee, which we might call Parliament’s geek squad, and raise a third set of concerns about the Bill as it currently stands.
Members have already talked about proportionality and people’s concerns about the balance between security and liberty, about the challenges of extra-jurisdictional
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legislation and whether, in a global world, we can pass national laws that make sense. I want to add concerns about the technical aspects of the Bill and, frankly, about whether it will work. Is this legislation designed for digital natives who are comfortable with the modern world, or has it in fact been designed by what we might call digital refugees—people who run away from the reality of the modern technical advances with which we are trying to deal?
All of us have had the experience of trying to explain to a person aged under 20 that, no, we could not google our homework when we were at school. Many of us may have jumpers that are older than the internet, which has fundamentally changed our lives. In this country, a third of all divorces contain a reference to Facebook, a technology that came into our lives only in 2007, but has fundamentally transformed that most personal of relationships. When we come to thinking about legislation that takes account of modern technologies and the ways in which they change, such legislation must be based on an understanding of those technologies and of the consequences of such changes to the law.
With that in mind, it was when the Committee looked at the question of surveillance, especially internet connection records, that concerns arose. Concerns arose in particular about the idea that, as the right hon. Member for Sheffield, Hallam (Mr Clegg) said, a dragnet could be used to bring together internet connection records for every single member of the British population for 12 months, and about what that might entail.
There is a fundamental challenge at the heart of the Bill about the idea that it is possible to separate somebody’s contact data from their content data. Many internet companies have made that point and said that they are concerned about such a definition. As yet, the legislation has not completely grappled with that definition. The Bill makes a distinction between identifying IP addresses and being able to know whom people have contacted, and what it calls anything else that
“might reasonably be considered to be the meaning…of the communication”.
That definition makes sense when we are talking about phone records, but the legislation has to cope with the world to come, not the world that has gone. If I send a message through Outlook, others do not need to know the content of the message to know that it is a request for a meeting. When we talk about knowing which websites people have visited, that of course brings with it content analogies: if I visit the Refuge website or the Alcohol Concern website, that is contact data, but because it is online contact, by its very nature it carries content information.
I very much welcome the shadow Home Secretary’s comments about our needing to challenge such definitions. We need a much tighter definition of what it means to have an internet connection record and of what information is held as part of that record. All three of the Committees that have looked at the legislation have called for that. However, to date, we have not heard from the Government an understanding that in the modern world the distinction between content and contact is not viable. The distinction between entity and events, and everything else, must be much tighter in the Bill. If it is not, the question of who can access that information bleeds into the question of who can access the meaning of those content combinations.
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Such questions will become starker as the internet develops, and particularly with the internet of things—I see that a few digital refugees on the Government Benches, and perhaps even some Labour Members, are querying what the internet of things is. It is the growing number of physical objects that are connected online. This Christmas I was given a coffeemaker that I can set off using my mobile phone, and it is wonderful to sit in bed and order several cups of coffee. So far, we have online airbags in cars, online burglar alarms, and some Members might even set their home electricity online. All those forms of contact are created through online mediums. We will soon have pacemakers that are electronically set up. People will be able to access their bank accounts in the same way. All such contact is potentially information that could be created in an internet communication record. It could also be useful in an investigation.
Kevin Hollinrake (Thirsk and Malton) (Con): With the internet connection record, we are looking for a past history for a future crime. If someone is investigating a child abuser or a terrorist, is it not relevant to see their past records and whether they have accessed sites with relevant material? We would be able to see that from contact information.
Stella Creasy: I am not quite sure about the hon. Gentleman’s point because no one is suggesting that we would not want to access such information. My point is that, from a technical perspective, separating contact data from content data is much more difficult than the Home Secretary suggests. That means that we need more honesty about the powers we are proposing that our police and investigatory authorities should have.
For example, if someone can get information about my use of an electricity meter, they might want to look at the contact between me and that meter. If I were accessing it a lot, they might wonder what I was doing in my home that required so much heat. Drug enforcement agencies might look at such contact patterns, and inevitably that brings with it content about what someone is doing. That does not mean that we do not need methods to access that information; it means that one thing missing from this debate to date is an honesty about the technological complications that will come with this Bill, and we must address those concerns.
The Minister for Security (Mr John Hayes): Perhaps I can reassure the hon. Lady. The Home Secretary emphasised that we continue to have discussions with the providers for exactly the reasons she has described. It is essential that they can do what we oblige them to do, and we are determined to put those mechanisms in place. The right hon. Member for Sheffield, Hallam (Mr Clegg) gave the game away because he said that repeatedly, over time, security services and the police have requested the ability to carry out such work, for the simple reason that they need to do that in order to protect us all.
Stella Creasy:
I am grateful to the Minister for acknowledging that the idea that one can always separate contact from content data is not viable. We need a much more honest debate about who will be able to access that information and under what circumstances. I hope that that will be discussed in Committee, because as the Bill is currently drafted, we cannot justify to our constituents
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the fact that their content data may be accessed—however inadvertently—because of the nature of technology. We must address that.
Let me move on to the question of honesty about encryption. A lot of technology companies and the technology industry in our economy are concerned about how the Bill may affect encryption. The Bill gives the Secretary of State the power to serve technical capability notices, and to require companies to remove their electronic protection. Again, it is not yet clear what that means, what protection exists in terms of encryption technologies, and what that might mean for other consumers of services. That is a real concern for many.
We know that encryption is a vital part of security for services. Constituents will mention “Ashley Madison” and “TalkTalk”, or they may be aware of hospitals that did not have security measures in place and had their systems hacked. We are talking about whether the Government will require those companies to bring in those backdoor opportunities for accessing information. We need much stronger scrutiny of the Bill and of what the encryption process means, not least because removing some of the encryption requirements would create a security risk. The Government are making that choice in return for the ability to do some of the things they are talking about doing, and we need to be honest with the public about that.
There is also a question relating to the security of data. In 2009, the Conservatives made great play of turning back the “surveillance state”, but it seems to me that they are seeking to privatise the databases they told us they did not want to see developed. The Bill asks companies to hold the data, but the security of that data is not clear. We know that having to hold everybody’s internet records for a whole year will be a honeypot to hackers. That will be a massive security risk unless security processes are in place—even if data are held by private companies. The fact that the Government have not clarified who will pay for that security, what a reasonable cost is and how to resolve disputes about what a reasonable cost will be, leaves open a gap that not just hackers but consumers will be deeply interested in. The Government must be much clearer about how they will make sure they protect consumers from having their information hacked as a result of requiring companies to gather data.
There are similar concerns about bulk interference and encryption data, but my central point is this: there are questions about the proportionality and the judicial extent of the Bill and working overseas, but there are also concerns about technology. We have to be able to answer questions on all three issues to be satisfied that the Bill is appropriate for the 21st century. I hope those issues will be addressed by amendments in Committee. I believe that many members of the Science and Technology Committee share concerns about whether our technology industry is comfortable with the proposed legislation.
For the Government to fail to act on any one of those questions will compromise the others. If we do not get the technology right and do not work with our overseas partners, we will not keep anybody safe. We could, in fact, create more problems. I hope Ministers will listen to those concerns and I hope they will recognise the spirit of what they said in 2009 about the importance of rolling back the surveillance state. I also hope they will be digital natives, not digital refugees. I will not support the Bill on Third Reading if they do not change it.
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4.11 pm
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.
Andy Burnham:
I am listening to the right hon. Gentleman’s remarks, and I did similar things as a Minister, but is it not the case that a politician’s mind will always turn to the question, “What if I don’t sign this?”, and the public embarrassment that might come
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from not signing? Is not the further judicial check a helpful double lock so that a politician need not worry that a failure to agree might lead to public embarrassment?
Mr Paterson: No, I think the politician’s personal feelings are wholly irrelevant. They are responsible to the public and the House and have to report on those decisions, and it is they who should be exclusively responsible for these very difficult, subjective decisions.
During my time, I had real respect for the thoroughness with which warrants were prepared, but on occasion I refused them, and there was a clear decision-making procedure. I was also acutely aware that my decisions would be subject to review after the event, and I respected the review process. As shadow Secretary of State, I spent three years visiting Northern Ireland every week, and I built up a level of knowledge that was really useful when I took over as Secretary of State. Some decisions had to be made in imperfect conditions with imperfect information. That is the nature of working with intelligence to protect the public. A decision sometimes required a personal judgment about what was in the public interest, not just a legal interpretation.
Alex Chalk (Cheltenham) (Con): Does my right hon. Friend agree that the point made by the hon. and learned Member for Edinburgh South West (Joanna Cherry) was a fair one: it is very difficult for the House properly to scrutinise what was the thought process and evidence base because so much of it will be considered in the national interest and so will not be transparent to us in the Chamber?
Mr Paterson: No, I was fully aware that I had to come regularly to the House to answer questions and that I could be called before the Select Committee. There were various methods by which the House could scrutinise my decisions.
The key thing is that the public demand for more scrutiny, which I fully appreciate, should not interfere with operational agility and thereby put the public at risk. The current system works and could, with amendments, offer much greater scrutiny. I am in favour of a more rigorous and rapid review process. The proposal in the Bill is that a warrant could be issued in emergencies but would be reviewed within three days. This could be made applicable to all warrants, and I would welcome that, but other practical and operational issues do not appear to have been considered.
It is not clear in the Bill what the procedure would be should a commissioner refuse a decision by the Secretary of State. There is potential for even further delay and confusion in clause 21(5), under which the Secretary of State may go to the Investigatory Powers Commissioner. Under the current arrangement, it is quite clear who is responsible: the Secretary of State, accountable to Parliament. Under the proposed system, with possible delays and divided decision making, it is not clear who is ultimately responsible should something go horribly wrong, with devastating consequences for the public. Should a terrorist operation be tragically successful because of delay and differences of opinion under the proposed dual lock, who would be legally responsible? Who would the relatives hold to account and potentially sue? The Secretary of State will be accountable to the
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House of Commons, but to whom will the judicial commissioners and the Investigatory Powers Commissioner ultimately be accountable?
The impossible position in which distinguished lawyers will be placed is highlighted in clause 196(5) and (6). Lawyers and judges are trained to interpret the law meticulously, but these subsections require very subjective political decisions. Subsection (5) provides:
“In exercising functions under this Act, a Judicial Commissioner must not act in a way…contrary to the public interest or prejudicial to…(a) national security, (b) the prevention or detection of serious crime, or (c) the economic well-being of the United Kingdom.”
“A Judicial Commissioner must, in particular, ensure that the Commissioner does not…(a) jeopardise the success of an intelligence or security operation or a law enforcement operation, (b) compromise the safety or security of those involved, or (c) unduly impede the operational effectiveness of an intelligence service, a police force, a government department or Her Majesty’s forces.”
No law book can possibly guide a distinguished lawyer on these questions, which ultimately require a political judgment. In order for these criteria to be met, the Secretary of State should clearly be accountable here, in order to guarantee our security services’ operational agility and the ability to react swiftly and at short notice.
According to the principle of the separation of powers, it is clear that lawyers should not make operational executive decisions that might require some personal judgment. Montesquieu himself said:
“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty…Again, there is no liberty, if the judiciary power be not separated from the legislative and executive”.
Lawyers should be brought in after the decision, in order to review the process by which the decision was arrived at. The Bill effectively brings judges into the Executive, giving them the difficult role of being both scrutineers and Executive decision makers. These roles require very different skills, and according to the separation of powers, they should be kept separate for good reason.
The further important deep flaw in the Bill applies particularly to Northern Ireland. It was illustrated in a high-profile case last October when members of the notorious Duffy family were accused of a number of terrorist offences arising out of a security services surveillance operation. The trial collapsed when the judge ordered disclosure of the tracking devices, and the case has been strongly made that as a result of this trial’s collapse, the public are at risk because of a judge’s insistence on total transparency procedure. In practical terms, this is unworkable in the current circumstances in Northern Ireland. The demand for transparent disclosure of the technology used, as required by this judge, would have compromised the methodology that keeps the public safe. It would also have educated terrorists on how to avoid detection in the future.
I am concerned, too, about clause 194(3)(e), which requires the Prime Minister to consult the First Minister and deputy First Minister before appointing an Investigatory Powers Commissioner or a judicial commissioner. I was the first Secretary of State for Northern Ireland to have responsibility, following the devolution of justice and policing to local politicians, and it was always clearly understood that the Secretary
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of State maintained responsibility for matters of national security; the Police Service of Northern Ireland and the security services reported to him on those matters.
I draw the attention of Ministers to the wise words of the Joint Committee, when it said:
“We are aware that particular sensitivities around these issues may apply in Northern Ireland. The Government will need to reflect on these sensitivities as this legislation progresses.”
That can be found in paragraph 419. Will the Government please commit to that?
Sadly, very few Members of either the House of Commons or the House of Lords have direct experience of this issue. Law-abiding British citizens are under threat from dangerous terrorists every day. I am acutely aware that deaths and injuries have been prevented not just thanks to the supreme professionalism of our security services, but thanks to the current swift decision-making process, which gives them critical operational agility. It will be tragic if this is lost because so few Members of Parliament understand the very real benefits of the current process. I am therefore opposed to the dual lock proposals in the Bill, and I hope they will be removed in Committee. The signing of warrants should remain the exclusive responsibility of the Secretary of State, accountable to Parliament, and the review process by distinguished members of the judiciary should be carried out sooner, more frequently and more thoroughly after the decision has been made.
4.22 pm
Mr David Winnick (Walsall North) (Lab): I shall come on in a few moments to some of the points raised by the right hon. Member for North Shropshire (Mr Paterson). Let me say, however, that I am deeply disappointed with the Bill, which does not even attempt a broad consensus outside this place on the balance between measures to protect the country from terrorism and those protecting the privacy at the same time of the overwhelming majority of citizens. I am not one of those who in any way minimises the continuing threats from terrorism. I well remember the atrocities of 7/7 and I know, as we all do, what happened over the weekend on the Ivory Coast, when a five-year-old lad was put to death by the terrorists. The boy was begging for his life, but it was no use. I am as aware as anyone of the murderous nature of the terrorist threats we face, and have no desire to minimise it in any way whatever.
One would have hoped that, with existing legislation due to lapse, any new measure would be of a different kind from what we have today—less severe and less comprehensive in many respects than some of the Bill’s clauses, which in my view are bound to be controversial and will remain so if the Bill becomes law.
The right hon. Member for North Shropshire was not happy about the judicial process involved, but I take the opposite view. If these measures are indeed going to be brought in, all the more reason for some judicial involvement. That would make it better than it otherwise would be. My criticism—again, it is very different from his—relates to the extent to which the judicial commissioners are likely to be able to probe the case for the warrant that the Home Secretary wants to be issued. It seems more likely to me that a judicial commissioner will merely have to be satisfied that all the necessary processes have been pursued. To what extent would a commissioner dealing with a case in which a warrant had been applied for be able to hear counter-arguments?
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If I were asked what I considered to be the most objectionable aspect of the Bill, and why I could never vote for it in any circumstances, I would cite clauses 78 and 79, which require the retention of communication data—and internet connection records of all kinds—for up to 12 months. Let us be perfectly clear about that. Let us have no illusions about it. Is it really desirable to retain, for that period, information relating to those who are not suspected of any criminal activity, and who, needless to say, constitute the overwhelming majority? Does anyone really believe that that will help the fight against terrorism? It could rather be argued that, by its very nature and given its controversial aspects, it is likely to be more counterproductive than helpful. If those clauses do not undermine privacy, I can only say that the very word “privacy” loses all meaning. Notwithstanding all the denials from Ministers, I would describe this as snooping on a massive scale, although we have been reassured that the actual content will not be looked at.
Mention has been made of the powers that will be given to what are described as “relevant public authorities”—not just the security authorities—to obtain communication data. My right hon. Friend the Member for Leigh (Andy Burnham) and other Labour Members have rightly pointed out that that could be used against trade unions. The 10 purposes for which data can be required include “public safety”, “financial stability” and
“the economic well-being of the United Kingdom”.
All those purposes could be used against trade unions in industrial relations cases. Labour Members should be, and are, very much on their guard, and I trust that those provisions will be examined in great detail in Committee.
The Joint Committee made some helpful recommendations relating to bulk personal dataset warrants, which, if put into effect, will improve the Bill. Following the Edward Snowden revelations, about which there was a great deal of fuss, the United States Senate took steps to restrict the collection of bulk communications except when there was a reasonable suspicion of association with international terrorism. The Bill is, essentially, doing the reverse—and the United States would have been unlikely to take measures to restrict those communications had it not been for Edward Snowden’s revelations.
Bill Binney, a former technical director of the United States National Security Agency—presumably he is not one of the usual suspects, and should know what he is talking about—has argued in articles, and in a letter published in The Times on 1 March, that bulk collection simply does not work. Scanning every single person’s communications, he says, simply overloads the scanner with data and false targets. What is really needed—and this is pretty obvious—is an emphasis on target suspects and their social networks.
We are being told today that the Bill is absolutely essential, and that if we want to combat terrorism, the way to do it is to pass this legislation. I am reminded, however, that following 7/7, we were told that it was absolutely essential to have 90 days, and later 42 days, of pre-charge detention and that unless we passed legislation to that effect, the country would be greatly threatened.
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Those of us who opposed it were accused of undermining security. Today, no one on either Front Bench would dream of recommending 90 or 42 days of pre-charge detention.
So this is just a warning that we should be very careful about giving away powers that it would be very difficult to take back. I said at the beginning of my speech that I was not persuaded that this legislation was justified. I think it is wrong and disproportionate, and I hope that if it is to become law, it will be substantially amended.
4.30 pm
Mr David Davis (Haltemprice and Howden) (Con): When I was listening to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) talking earlier about steaming open letters, I was reminded of the fact that, in 1929, the then American Secretary of State, Henry Stimson, shut down the State Department’s code breaking department with the words:
“Gentlemen do not read other gentlemen’s mail.”
That was quaint even then, and the action was quickly reversed. Today, everybody recognises the vital importance of targeted surveillance of dangerous criminals of all sorts.
I think everyone in this House wants to see our intelligence agencies and police forces equipped with effective measures that will help them to do their job. I do not think that there is any difference between us on that issue. However, the presentation of this Bill has required the Home Office publicly to avow a vast range of surveillance powers that to date have existed in secret. These powers seem to be rather greater than those used by our allies—certainly greater than those used by America or Germany. Some of them would have been struck down as unconstitutional in both those countries.
What seems to have happened is that these powers have been developed over the past 20 years using a vast thicket of existing legislation, largely without the knowledge of Parliament. Many of the agencies’ current capabilities were never considered when the legislation that underpins them was created. I can say with absolute certainty that that is true of the Intelligence Services Act 1994, which as a Minister I took through Parliament. It was never envisaged, for example, that that legislation would provide for the acquisition of bulk personal datasets.
I could give the House many further examples, but time is short so I shall give a single example of how, with the best of intentions, the creep of surveillance has happened. It relates to the erosion of legal privilege. Until the late 1990s, when an intercept or bug was recording a criminal suspect, the bug was turned off the moment the suspect started talking to his lawyer. That is what used to happen; the position was absolutely clear. Then in 2000, the Regulation of Investigatory Powers Act was introduced. RIPA was silent on legal privilege. It was simply not mentioned in the Act at all. However, the Government of the day chose to interpret that silence as acquiescence that RIPA did allow for the surveillance of privileged communications. So we went from a situation in which recording equipment was switched off in those circumstances to one in which privileged conversations were recorded and kept in a separate, red-flagged database. That was how it worked.
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This matter eventually came out in 2009, when two Law Lords, Lord Phillips and Lord Neuberger, expressed their incredulity that the Government had in effect been “sanctioning illegal surveillance”. At least in those initial stages, however, the illegally collected information was red-flagged and kept from being allowed to pervert the judicial process. Then, either during or before 2014, the rules were changed to allow the Government lawyers to see the intercepts. This is extremely dangerous to the operation of justice. It could destroy equality of arms, which in turn could undermine perfectly proper cases against terrorists, leading to their being freed on the basis of an improper prosecution.
That single example of the actions of the agencies and the Home Office is important in its own right, but I cite it here as a demonstration of what has been happening over the past 20 years. Owing to the difficulty of the counter-terrorism task and the opportunities afforded by technology, the agencies in particular, but also the police and other organisations, have quite understandably sought to extend their powers, using, in this case, the silence of RIPA to erode legal privilege. We have seen that again and again. We saw it in the Intelligence Services Act 1994, which I mentioned, and in the Telecommunications Act of, ironically, 1984, which followed the decision to privatise British Telecom. That is why this Bill must be drafted incredibly precisely and carefully.
As it stands, the language in the Bill is designed to confuse. My right hon. and learned Friend the Member for Rushcliffe, a previous Home Secretary, and I were talking about this and both of us had trouble understanding its 250 pages. That must be put right and that is why I am concerned about the Report stage. There are many other significant flaws in the Bill that must be put right, such as the lack of sufficient privacy protections, the collection of ill-defined bulk personal datasets, wide and too-easy access to retained communications data, the prime ministerial appointment of judicial commissioners—it goes on and on. I have about a dozen items here, but I do not intend to go through them all.
In my final couple of minutes, I want to touch on the bulk capabilities. The House should be under no misapprehension as to how broad and potent the powers are, even though the Chairman of ISC, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), is quite right to say that the agencies do try to be as economical as they can in using them. The powers allow for the interception of vast quantities of foreign and domestic communications and the acquisition of the entire nation’s phone and internet records, and permit industrial-scale exploitation of phones and computers. The fundamental question is whether those powers are effective.
In the US, the bulk collection of citizens’ data has been heavily curbed as it was considered to be
“not essential to preventing terrorist attacks”.
Most damningly, the American President’s privacy and civil liberties oversight board said that it was
“aware of no instance in which the”
“directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
There are genuine concerns that the collect-it-all approach actually makes things worse, which goes back to the point about Bill Binney referred to by the hon. Member
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for Walsall North (Mr Winnick). I say this to the House and to the ISC: the Senate intelligence committee, the ISC’s more powerful equivalent in the US, was initially persuaded that bulk data collection had prevented over 50 terrorist attacks. The staff of the Senate judiciary committee then went through the claims one by one and found only one case, and it was not a terrorist attack but an $8,000 money laundering case. That is how useful the powers were and that is why they have been curbed.
This Bill, or something like it, is absolutely necessary. It replaces 66-plus other statutory mechanisms, so, in the interests of transparency, we need something to put in their place, but it grants sweeping powers with insufficient safeguards and not enough consideration of privacy. I ask all parts of the House to press for more time on Report to allow for reasonable amendments to the legislation that will put in place a world-standard law.
I will finish on this point. Other countries, in particular the most unpleasant ones, are always happy to use Britain as an example for something that they should not be doing. That is why I opposed 90-day detention and many other illiberal things that too many Governments have done.
Mr Deputy Speaker (Mr Lindsay Hoyle): Order. One more speaker will have eight minutes. Then, in order to accommodate all those standing, we will need to drop to a four-minute limit.
4.39 pm
Mr David Hanson (Delyn) (Lab): I wanted to contribute to today’s debate, because, like several other hon. Members in the Chamber, I served for four months on the Joint Committee on the draft Investigatory Powers Bill, which considered the Bill in some detail. They may be four months of my life that I will never get back, but scrutinising the Bill was certainly a worthwhile experience. The Joint Committee was appointed by the House in October and met from 25 November under the chairmanship of my noble Friend Lord Murphy of Torfaen. I pay tribute to him and to the Clerks of the Committee for the way in which they stewarded its deliberations. We had 54 witnesses and nine evidence sessions. We met in public and in private to scrutinise the Bill, in recess and out of recess, when the Commons was sitting. We received 148 submissions and more than 1,500 pages of evidence. We visited GCHQ and the Metropolitan police, and we gave detailed, fair, cross-party consideration to a difficult subject to bring forward proposals on. Our conclusions were relatively unanimous.
The first conclusion was that we need to modernise the current legislation, including that which expires on 31 December. There is therefore a clear need for this Bill, in order to modernise RIPA, the terrorism Acts, the Police and Criminal Evidence Act 1984 and other legislation to hand. We have to look at, and we ensured that we did look at, not only the issue of privacy, but the issue of security, both of which were central to our concerns. Although we welcomed consideration of the report, we did make 86 recommendations. If people want to read about this, as I am sure they will, they will see that our report contains 157 comments and recommendations in the summary and conclusions to improve the Bill and make it stronger, and to address some of the concerns that people raised.
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I wish to draw the House’s attention, first and foremost, to our first recommendation, which states:
“Resolving the tension between privacy and effective law enforcement in this area is no easy task. The Home Office has now come forward with a draft Bill which seeks to consolidate in a clear and transparent way the law enabling all intrusive capabilities. The Committee, together with the many witnesses who gave evidence to us, was unanimous on the desirability of having a new Bill.”
The Labour party members, the Conservative members, the SNP member, the Liberal member, Lord Strasburger, the bishops and the independent members were unanimous on the need for a new Bill.
The question is: why do we need this Bill? I believe we need it for several reasons. First and foremost, we need it to tackle terrorism, strong and serious organised crime, paedophilia and organised crime across the board. If we look at the annexes to the reports presented to us as part of our evidence from, among others, David Anderson, we will see cases where terrorism has been stopped by activities dealt with under this Bill. For example, in 2010, an airline worker in the UK who had access to airline capability was stopped as a result of access to bulk data. We have information on GCHQ intelligence uncovering networks of extremists who had travelled to Pakistan and then been stopped as a result of the acquisition of bulk data. We have GCHQ evidence on bulk data that have tracked down men who have been abusing hundreds of children across the world and are now in UK prisons because of the powers dealt with in this legislation. We have information on criminal investigations into UK-based crime groups that were supplying class A drugs from south America, where intercept evidence provided intelligence on their modus operandi and they have subsequently been put in prison, resulting in fewer drugs on our streets. We have evidence, and we took such evidence in the Committee, about criminal investigations into London-based gangs, money laundering and dark web activities.
I took some of the previous legislation in this area through as the then Minister for Policing, Crime and Counter-Terrorism under the Labour Government, but things have changed since then. Six years ago, I did not use Twitter, I never had Facebook, and I did not have WhatsApp or the Fitbit that I have on my chest today—now I can talk to my family using them. We have not got the information material now to be able to keep up with the technology, which has advanced. If we look at the type of activity being covered by these Bills, we will see that terrorism is pretty low on the list, at only 1%. Other offences are crucial, such as those relating to vulnerable or missing persons, as well as drug offences, homicide and financial offences, and they cover a large bulk of the amount of work done to date. As I have said, the Joint Committee made 86 recommendations and the Government accepted 46 of them. I hope that we can look in Committee at 20 other recommendations that the Joint Committee made. To do that, this House needs to pass this Bill. I support the decision by my Front-Bench colleagues and the SNP to abstain, but, given that there are Conservative, Labour, SNP and, indeed, Liberal Members who support the Joint Committee’s report, I hope there will not be a vote today and that we will let the Bill go through and then deal with the key issues that my right hon. Friend the
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Member for Leigh (Andy Burnham) has mentioned, which are important to the Labour party. I hope we will also look at the 20 or so Joint Committee recommendations that have not yet been adopted by the Government.
The key issues include those mentioned by the right hon. Member for Haltemprice and Howden (Mr Davis) with regard to the definition of internet records. They also include targeting warrants for equipment; recommending and removing emergency procedures; recommending further safeguards for the sharing of information with overseas agencies; and more support and recommendations for strengthening the protection the Bill affords to journalistic material.
Andy Burnham: I am listening very carefully to my right hon. Gentleman and I agree entirely with everything he has said. Before he finishes, will he say a little more about the Committee’s recommendation on the definition of national security? The Committee raised that as a concern and the term has been used to cover a multitude of activities. Does he agree that it would be better for the Government to provide a clear definition of national security in the Bill and to drop the justification of economic wellbeing for the more intrusive warrants?
Mr Hanson: I cannot speak for the Committee as a whole, but my right hon. Friend makes a very important point. We asked, “What is national security?”, and the answer we got was, “What the Government deem it to be.” Perhaps it is time to make a definition.
My right hon. Friend said that the Labour party would set important challenges. If he looks at the 20 cross-party recommendations that have not been accepted—I am sure that he and the Government will do so—he will see that we have the ability, here and now, to make real and effective changes that would improve the Bill further. The key one is that relating to the definition of internet records and, as I asked the Home Secretary earlier, their deliverability. I genuinely do not have a great problem with the principle of defining an internet record or with the question of how we store it and eventually track individuals who have committed crimes or who could commit crimes in the future. The key point, however, is that we do not yet have a definition, nor do we have clarity on how the Government will fund and manage the storage of internet records.
I hope that the Bill Committee members will look at the written evidence received from Vodafone, TalkTalk and EE. They are very clear that they can use the budget set by the Government over 10 years to develop and manage the storage of internet records. We need a better, more effective way to deal with the issue.
I hope that there will not be a vote. If there is one, I will abstain—it is not my job to support the Government’s Bills through the Commons—but I really hope that the Bill will make it to the statute book in due course, after meeting the strong challenges set by my right hon. Friend and the cross-party Joint Committee. If that happens, the Bill will be used appropriately to stop paedophilia, organised crime and drug trafficking, to prevent terrorism, and to protect our citizens, which is the first duty of this House. That is what we should aim to do this evening.
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Mr Deputy Speaker (Mr Lindsay Hoyle): Order. I call Victoria Prentis, who has four minutes.
4.48 pm
Victoria Prentis (Banbury) (Con): Frankly, I struggled with the intricacies of RIPA and the other relevant legislation in my many years as a Government lawyer. I was, therefore, pleased and, indeed, excited to hear that previously almost impenetrable legislation was going to be consolidated into a new, easy to understand Bill, fit for the modern age.
When I read the draft Bill, I had concerns. I felt that greater judicial oversight was needed and that specialist groups, such as lawyers, journalists and, indeed, Members of this House, needed further protection. I read the Committee reports with interest and I was very much heartened to read the new Bill, which was produced following a large amount of scrutiny.
I feel that the double lock is a safe one. Assessing applications does and will undoubtedly take up a great deal of the Home Secretary’s time, but it is time well spent. It means that she is up to date with the details of real investigations in a way that few of her counterparts abroad can ever hope to be. It keeps her finger on the pulse. These are both political and judicial decisions; the fact that bulk warrants will come into force only once they have been authorised by the Secretary of State and approved by the Judicial Commissioner seems to be the very best of both worlds. Effectively, we are talking about judicial review with bells and whistles on, as Lord Judge informed the Committee, in every single case.
I was also pleased to read about the new protections afforded to those who provide information to sensitive persons—I hesitate to call lawyers and politicians sensitive, but perhaps those who provide us with information may be so described. The exemption is specially related to journalist sources.
I have been surprised by the openness of the Department in publishing the supporting material for this Bill. It is brave—I use that word as a long-term civil servant—of the Government to have published codes of practice complete with examples, and indeed the operational case for assessing internet connection records. It means that we can have a really informed debate today. I have presented cases where the security services, the police and the Ministry of Defence have analysed very large quantities of data. Although not very technically able myself, I did have to learn a certain amount about the search engines, which were designed to interrogate this material. I was reassured and, in turn, was able to reassure judges and Queen’s Bench Masters that the material on which important decisions were made was as complete as possible. The ability to collect bulk data is essential. The new Bill will help to ensure that there is no credibility gap in the balance between keeping us safe and protecting our rights to privacy. As important as pinpointing what information Government can obtain is deciding what can be done with it once it is gathered. This is where the important ethical debate should focus.
Last week the Justice Committee was fortunate to interview the President of the Citizens Crime Commission of New York City. He told us about new techniques to reduce crime by interrogating openly available material. Discussions now need to focus on whether we should
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interrogate social media to decide on a person’s propensity to commit crime or have drug addiction problems in the future.
I hope that the new IP commissioner will be a strong voice in the debates that lie ahead, and that he will be able to add a sensible and independent viewpoint to both the media and this House. Getting the balance right will always be a challenge, but I welcome the transparent approach of the Home Secretary and her team in presenting us with the Bill in its current form.
4.52 pm
Diana Johnson (Kingston upon Hull North) (Lab): If we are to take the public with us on this important Bill, we need to be clear about what we want to achieve, and we need to be very precise in our language. We need a law enforcement framework that is fit for the 21st century, that matches technological advancement and that deals with the way that criminals have very effectively exploited technology. When we are tackling cases of terrorism or child abuse, we need to leave the public in no doubt as to whose side we are on. I want a law that is fit for purpose, is not outdated and is future-proofed as far as it can be.
I specifically want to talk about child abuse and the role that this legislation can play in trying to tackle online child abuse, which we have seen so much of in recent years. I also want to register my concerns about privacy. I know that the Committees that considered the draft legislation raised a number of issues, including privacy, the need to be very clear about privacy in the drafting, and the fact that some of the drafting is not as clear as it could be.
On child abuse, we know that, unfortunately, paedophiles have very quickly exploited the internet for disseminating and distributing child abuse images. We know that there are about 50,000 people in the UK who are accessing these abusive images each year. I am disappointed to say that, when the Child Exploitation and Online Protection Centre disappeared and was subsumed into the National Crime Agency, the number of paedophiles being identified and prosecuted in the UK started to fall, when we know that there is a rise in the number of people looking at these child abuse images. In fact, in Operation Notarise, it was found that between 20,000 and 30,000 suspects were looking at these images, but only 745 people were arrested. That is simply not good enough.
I was very disappointed to read a quote from the Minister for Policing, Fire, Criminal Justice and Victims, the right hon. Member for Hemel Hempstead (Mike Penning), who said, agreeing with what the head of the National Crime Agency had said:
“it is unrealistic to say that we will be able to go after, prosecute and convict in every single case”—
of child abuse. He said that the head of the NCA’s
“honesty was refreshing.”
Well, I do not think arresting less than 5% of suspected abusers is something that we should be proud of. As my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) said, if we can arrest 111,000 people suspected of drug offences a year, we should be able to arrest 25,000 people suspected of looking at child abuse images.
It is clear to me that part of the problem around why we are not making those arrests is the limitations in the legislation that we are working with. I want to see
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people like Myles Bradbury, the doctor who was abusing his young patients, and Gareth Williams, the teacher who was abusing his pupils, brought to book far more quickly. We need an updated framework, we need to be able to identify offenders, and we need to update the warrant procedure and the investigation procedures. If we are to do that, the public need to be reassured that there is clear drafting. At the moment, it is easy to see what traditional surveillance looks like—tapping a telephone or following someone in the street—but it is much harder for the public to understand how we map surveillance on to online communications. We need clarity about the status of Twitter, Facebook and Instagram.
If we do all that, it should be possible to produce a workable system with all the necessary safeguards of privacy and fundamental liberties—a system that protects the innocent as much as it protects the vulnerable, and which only those from whom society needs protection need fear.
4.56 pm
Victoria Atkins (Louth and Horncastle) (Con): Like the right hon. Member for Delyn (Mr Hanson) and others in the Chamber, I had the privilege of serving on the Joint Committee. Against that background, I have no doubt that the Bill will help the security services and the police to keep our nation safe while preserving our civil liberties. That alone is reason enough for the Bill.
But the Bill serves another purpose—one that is just as important to our constituents as national security—and that is to help the police and law enforcement officers to catch the most dangerous and serious criminals. These powers will be used to stop the very worst of humanity—those who commit unspeakable acts against children, those who run their criminal networks in our streets with violence and fear, guns and knives, and those who seek to undermine our civil society by stealing from the state and from our families. This is the reality of the crimes our police officers have to investigate. The Bill will help to prevent crime, and to protect the victims of crime from people who mean us harm.
If I may, I will try to bring these powers to life in the Chamber. In my previous career I used to prosecute criminals, and I am very familiar with the law enforcement powers in the Bill because all of them, with the exception of ICRs, already exist and have been used for many years.
One example was a case involving an organised crime gang who, with the mafia, used to run the counterfeit cigarette market in the north of England. Over six months, that conspiracy involved the import of millions of dodgy cigarettes and the evasion of over £10 million in duty. The case relied on digital evidence to prove the involvement of 11 defendants. We used mobile phone records and cell site data to build a map of the six months, showing, for example, when defendants drove from the port to HQ to distribute the cigarettes to couriers and further afield. The map was so detailed that we could point to a single call and suggest to the jury that that was the call to the gang to say, “The load is here. Come and get it.” That is an example of communications data. It is used in 95% of organised crime cases and 100% of counter-terrorism cases.
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There was another piece of compelling evidence that caused real difficulties for the leader of the gang, and that was a microphone in his car. When the tape was played to the jury, the conversations revealed plans, not to import cigarettes but to import drugs. Criminals diversify, just as legitimate businesses do. That is equipment interference. It is vital in the modern age and has been for some time, but this case was five years ago. I used it deliberately, because we now use our phones in a very different way and so do criminals. If that case were investigated now, a major part of the prosecution case—the communications between defendants—might well be a black hole because of the changes in the way that criminals communicate. How many paedophiles, gangsters, drug lords, gun runners and terrorists are to escape justice while some critics of this Bill—not here, I accept—try to divert our attention with misleading claims of a “snoopers charter”?
Finally, I end as I began, with the Joint Committee. This was a Committee of all parties and none—Conservative, Labour, Liberal Democrat, the SNP and Cross Benchers. It was unanimous in its support in principle for the Bill. I therefore have no hesitation in advising the Chamber that the Bill is necessary, proportionate and just.
5 pm
Steve McCabe (Birmingham, Selly Oak) (Lab): I want to make it clear that I believe that our police and security services must have the necessary powers to protect us from terrorists and to disrupt, prevent and apprehend organised criminals, and that it is necessary to equip them with the proper legal powers to intercept communications and acquire information about the activities of those who would do us harm.
I am aware that in the west midlands there is a threat to our way of life. I was shocked to see figures from the National Police Chiefs Council which claimed that more than 400 children had been referred to a de-radicalisation programme over the past four years, and I am conscious of reports that the ringleader of the horrific Paris attacks, Abdelhamid Abaaoud, visited Birmingham just months before spearheading the carnage in Paris, so I do not underestimate the risks. Under normal conditions I would come to the House to defend the Government and support their aims, but if it were not for the seriousness of these matters, I query whether this deficient Bill deserves a Second Reading today.
I do not accept that in a liberal democratic society we can let any Government have carte blanche to instigate surveillance powers across whole communities of innocent people. Where we permit the extensive use of surveillance, it must be subject to the strictest scrutiny and controls; otherwise, what is our purpose? The Bill before us does not have anything like enough safeguards and it is drawn far too wide. Unless it is substantially modified, I would be doing a disservice to the people who elected me if I did not challenge it.
I agree with the Intelligence and Security Committee report that
“privacy protections should form the backbone of the draft legislation”.
It is an insult to the British people that the Government think that inserting the word “privacy” into the title of part 1 addresses such a fundamental concern. The Bill
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gives the Home Secretary powers to issue national security or technical capability notices requiring the recipients to take such steps as the Home Secretary considers necessary. This is, in effect, Parliament writing a blank cheque. Measures such as national security notices should be limited to emergencies. They should not be capable of being used on fishing expeditions.
On internet connection records, I agree with David Anderson that a “compelling operational case” should be made. As a result of the proposals in the Bill, the UK will be the only country in the world to have a policy of capturing and recording every citizen’s internet use. We will be the envy of states such as North Korea, China and Iran. The Government are planning to have a full record of an individual’s contact history, whether that individual is under suspicion or not. The idea that agencies will be allowed to combine information from a variety of sources—everything from our Nectar card to our library card and medical records—is intolerable.
We need substantial changes to this Bill so that the genuine powers that the police and security services need to protect us are available in legal form, and our civil liberties are recognised in law and cannot be misused.
5.4 pm
Michael Tomlinson (Mid Dorset and North Poole) (Con): It is a pleasure to follow the hon. Member for Birmingham, Selly Oak (Steve McCabe), although I disagree with his analysis and with what he says about the Bill being a blank cheque and about the provisions being ones that North Korea or China would welcome.
I also disagree with the many comments characterising the Bill as a snoopers charter, and I agree with my hon. Friend the Member for Louth and Horncastle (Victoria Atkins) and the shadow Home Secretary, the right hon. Member for Leigh (Andy Burnham), that it is an insult to those who work so hard to provide for our safety to characterise it in that way.
Some have accused the Government of bringing the Bill before the House too quickly; indeed, the hon. and learned Member for Edinburgh South West (Joanna Cherry) said it was a “rushed job”. Again, I disagree. There has been extensive prelegislative scrutiny of the Bill, and there will be further opportunity to scrutinise it during its later stages.
I will focus on one aspect: the authorisation under parts 2, 5, 6 and 7. On that, I agree with much of what my right hon. Friend the Member for North Shropshire (Mr Paterson) said. Essentially, the choice is whether authorisation should come from the Secretary of State, the judiciary or a combination of the two. One initial recommendation was that the Secretary of State’s authorisation should be replaced by judicial authorisation. That suggestion would replace a practice several centuries in the making, and I disagree with it.
It was said that judicial authorisation would improve public confidence in the system. I have great respect for the judiciary—as a lawyer, I have to say that, but it also happens to be true. However, I regret that it is thought that handing these powers from the Executive to the judiciary would improve public confidence, and I regret that this place and politicians are held in such low esteem. My firm view is that we should not pass the
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buck just because these decisions are difficult and may be unpopular, for that would risk making politicians yet more unpopular.
It has been said that Ministers are not accountable, but I disagree: they are accountable to Parliament, Select Committees and the electorate. That contrasts with judges, who, however well respected—and, of course, they are—are not elected and not accountable. This decision is an Executive decision, and as such it should certainly involve the Secretary of State. If the proposal had been that the judiciary alone would make these decisions, I would be rising to speak against the Bill. As it is, the double lock—authorisation from the Secretary of State, but with a check from the judiciary—means that I can support the proposals.
Kevin Foster (Torbay) (Con): Does my hon. Friend agree that, given the nature of these powers, no Secretary of State—certainly, no Home Secretary—would come to the House and say, “I didn’t know,” if there had been a controversy about their usage and about a warrant?
Michael Tomlinson: As always, my hon. Friend makes an insightful point, and I am grateful for his intervention. As drafted, however, the double lock is a sensible compromise, which perhaps strikes the right balance. In the broader context of the Bill, and as set out, the test in the Bill is just, necessary and proportionate, and I will be supporting it this evening.
5.9 pm
Gavin Robinson (Belfast East) (DUP): It is an honour to follow the hon. Member for Mid Dorset and North Poole (Michael Tomlinson). While we as a party share some of the misgivings that have been raised in this debate, we would be supportive of this Bill receiving its Second Reading.
As the elected representative for Belfast East, I cannot, in all good conscience, stand here and have an abstract discussion about the threat of terrorism. Terrorism hit home in my constituency a week ago last Friday, and sadly the tragic consequences materialised today. When Adrian Ismay left his home a week ago last Friday, he did so as a diligent and dedicated public servant. He was on his way to his place of work as a prison officer. He had served the Northern Ireland Prison Service for 28 years. He worked in Hydebank young offenders centre. He emulated all that is good about our society in Northern Ireland, and his service was dedicated to bringing our society together, but that is a long way from the motives of those who planted a booby-trap bomb under his car. The esteem in which he was held in Hydebank is best described by the inmates he had direct contact with, who issued a condemnation of and expressed their abject horror at the atrocity that was brought to his home and to his car last Friday.
The right hon. Member for North Shropshire (Mr Paterson) raised a number of serious concerns that we share about the implications when we tackle terrorism head-on in Northern Ireland. I share those concerns, and as a representative of my party on home affairs and justice, I wrote to the Joint Committee on a confidential basis to raise some of them.
An individual was mentioned earlier—Colin Duffy. Colin Duffy is a monster. Colin Duffy has terrorised society in Northern Ireland for over three decades. He
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was convicted of murdering a UDR soldier in Northern Ireland—a conviction that was subsequently quashed. He was arrested and charged with the offence that took place when two serving members of the armed forces—two sappers—in Massereene barracks had pizza the night before they went off on a tour of duty. He was arrested for the murder of two serving police officers in Northern Ireland, but was subsequently released. When he was arrested less than a year ago for directing terrorism under the banner of the New IRA—an organisation with no ideology but blood thirst and the wish to destroy society in Northern Ireland—he was released because the judge was prepared to order the security services to reveal the nature of the way in which he was brought before the courts. He still walks our streets today, but Mr Ismay does not.
I support this Government today, as I will always support this Government when they stand against terrorism. If we can do anything, it is to have a rational, sensible discussion. That is not to suggest that these threats are abstract or that people are not dying on our streets in the United Kingdom today—hopefully not—but that the threat remains for the months and the years to come. We must be resolute in this House in recognising the dangers not only in London and Great Britain but in Northern Ireland. If we can do anything to honour the memory of Adrian Ismay, it is to make sure that this Government, and our security services, are equipped with all the powers they need to bring people like Colin Duffy and his cohorts to justice.
5.13 pm
Kelly Tolhurst (Rochester and Strood) (Con): There is nothing more important than the safety of our country and the people who reside in it. I believe that the Bill before us today is an important step forward with regard to securing a clear framework to further enable our security and intelligence agencies to do just that. I welcome the introduction of the Bill and its allowing us to have this debate. I am pleased that the draft Bill was scrutinised by Committees of this House, with the Government making safeguards clearer and stronger.
It remains important that the agencies tasked with protecting us are able to do so in the developing digital world. I understand why some would express concerns over data collection and how those data would be used, and it is right that those questions are asked and explored. However, in today’s digital world, now more than ever, our children are vulnerable to criminals, who target and exploit them by digital means. It has been reported that, in 2012, 50,000 members of the British public accessed indecent images of children over the internet. Only last year in my constituency, we saw a head teacher sent to jail for accessing images of that kind.
Protecting our children and bringing the people who abuse them to justice is of paramount importance to me. I have seen at first hand the lifelong damage caused to children who have been abused and exploited. If the Bill enables our police forces to detect and stop abusers, that is enough for me. Last week, I was part of a panel that heard evidence in relation to the Barnardo’s inquiry into harmful sexual behaviour. We heard evidence from the National Police Chiefs Council lead for child protection and child abuse investigations, who informed us that
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there were 70,000 allegations of abuse in 2015, an 80% increase on 2012. More worryingly, on the current trajectory, allegations would rise to 200,000 by 2020.
Ultimately, the chief constable said that the Investigatory Powers Bill would give the police essential powers to combat internet grooming and the dissemination of indecent images of children. That is made more important by the fact that only a very small number of cases—one in eight—are reported by victims. It is therefore crucial that more is done to arm authorities to identify more abuse and bring more offenders to justice. For example, of more than 600 criminals covered by an interception warrant, over 300 were accessing online communications services. The powers in the Bill would mean 300 trackable communications, leading to 300 paedophiles being prosecuted.
It is clear to me that the direction and focus provided by the Bill can only bring positive results when it comes to preventing online child abuse. Last week, the Barnardo’s inquiry also informed me that many child abuse offenders are not using the most sophisticated methods to search and share illicit material, or to conduct internet grooming. A large percentage of such offenders use social media and messenger services, and many use chatrooms. The Bill will require service providers to record those communications when a notice is served. That will make the job of prosecuting abusers that much easier, because it will not involve going through the current request process.
Because of the rise in mobile and internet technologies that were unavailable 15 years ago, it is a sad fact that one of the biggest challenges before us today is that the abuse of children is increasing. We need to allow our police forces to utilise the powers outlined in the Bill if we are to keep our children safe from sexual abuse. That is why I encourage the House to join me in supporting the Bill today.
5.17 pm
Anne McLaughlin (Glasgow North East) (SNP): As Members have heard, on the three main aims of the Bill, the SNP agrees with the Government. Laudable as those aims are, however, they are certainly not always in concert with the effects of the Bill. In the words of the Internet Services Providers Association, ISPA—not to be confused with the Independent Parliamentary Standards Authority, IPSA—
“there is a disconnect between what can be found on the face of the Bill and what the Government says the Bill will be used for. Given that the Bill is highly intrusive, the Government must put all of its intentions for how it plans to use the powers on to the face of the Bill. Reliance on speeches and…documents, such as codes of practice, to make clear what the Bill explicitly intends is unsatisfactory.”
The SNP and I have a number of other concerns, as my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) so eloquently laid out. As the SNP’s civil liberties spokesperson, I have received a large volume of emails on the matter. I want to focus on the concerns most frequently raised with me by civil liberties campaigners and my constituents. Time is very tight, so I have to chop my speech to pieces. I will try to be specific and to speak even more quickly than I am doing now.
One concern is that the Bill legalises practices that have been introduced without any parliamentary scrutiny, and it uses the fact that they are already happening as
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some kind of justification for their efficacy, legality or morality. We should be wary of legitimising steps taken by state agencies without our knowledge or consent, before we have had a full debate on whether we consent to those powers. I refer, of course, to the bulk powers in the Bill. It is not good enough to say, “We have not had any major disasters so far.” That is the cowboy builder’s approach to our liberties. It is equivalent to saying, “Keep your fingers crossed and hope that the roof does not cave in,” and it is not good enough.
Like many civil liberties campaigners, I appreciate the fact that targeted interception with appropriate oversight plays a vital role in keeping our constituents safe. Nobody has a monopoly on that—we all want to be safe, and we all want to feel safe—but the key issue is targeting. The majority of the case studies that were provided, and experience of terrorist attacks elsewhere, show that, by and large, individuals involved in such attacks attract attention from the authorities in advance of the attacks.
Simon Hoare: Will the hon. Lady give way?
Anne McLaughlin: I am speaking as fast as I can; I cannot possibly give way. I am very sorry.
Such leads must be followed up in a targeted manner, and we must protect our much valued civil liberties and the freedoms for which, so we are told, Britain is famed.
I find it disturbing and somewhat frightening that the Home Secretary has refused to accept the recommendation, by one of the three parliamentary Committees that have detailed their concerns, to exclude from the Bill the use of surveillance powers for the economic wellbeing of the UK. From the passion and determination with which British politicians of all hues fought to keep Scotland in the UK, and if we accept, as I do, that they did so not just for Scotland’s own good, it is clear that they believed that our independence would have an adverse impact on the UK economy. Notwithstanding the fact that I do not necessarily agree with that premise, I am interested to know whether all independence campaigners are vulnerable under this legislation.
Mike Wood (Dudley South) (Con): Will the hon. Lady give way?
As Members may have heard, the First Minister of Scotland has recently announced a new initiative, starting this summer, to argue for independence, so it is best that we know.
Campaigners have rightly been somewhat alarmed to read clause 1(3), in which the Government tell us that some of the protections enjoyed by citizens of the UK—indeed, the only protections explicitly named in the Bill—exist
“by virtue of the Human Rights Act 1998”.
The Government are not only pushing the Bill through hastily and to a tight timetable, but asking us to accept protections in a piece of legislation that they are doing their utmost to scrap. We want a Bill that we can fully support. For us, we do not yet have such a Bill.
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5.21 pm
Steve Brine (Winchester) (Con): My thoughts on this legislation can best be summed up in three ways: first, it is about time; secondly, it is very much a Bill of our time; and thirdly, I of course wish it was not needed at all. The measures contained in the Bill should have been on the statute book in the previous Parliament, of which I was a Member, but history records why they were not.
I say it is a Bill of our time. Sadly, the bad guys have always wanted to do us harm. In the internet age, it of course gets harder to deal with them—it requires us as a society to ask ourselves even tougher questions about the compromises required—but that does not mean we can bury our heads in the sand. Whether or not this Parliament acts, the world will continue to be a dangerous place and our many enemies will continue to use the very latest technology to try to get at us. We cannot stop the world because we want to get off.
It seems to me that the opponents of the Bill break in one of two ways, or perhaps both—that we have rushed to get to this point, and that insufficient safeguards are in place for the powers granted. As a youngish researcher, I worked on the Regulation of Investigatory Powers Bill 16 years ago. I remember the claims that it was rushed, was not needed and, above all, would usher in some Orwellian nightmare. I did not believe that then, and I do not believe it now. The intention to bring forward this legislation was set out clearly in our successful manifesto last year.
Simon Hoare: My hon. Friend makes the very important point that this legislation was in our manifesto. Given the slightly academic approach to law enforcement taken by our friends in the other place, does he share my hope that, because the Bill is a manifesto commitment, they will not seek to hold it up, given its urgency?
Steve Brine: I think the other place will enjoy being described as taking an academic approach. Yes, this very clear security measure was in our manifesto, and I think that message will clearly go along the corridor.
As the Home Secretary said, the Bill follows no fewer than three reports, published last year, which concluded that the law in this area was not fit for purpose and needed reform. We have heard much about the Anderson report today. We have had the ISC report and we have heard from its Chairman, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). We have also had the RUSI independent surveillance review. Further to all that, the draft Bill was subject to pre-legislative scrutiny by three parliamentary Committees, which made some 86 recommendations about how it might be improved.
As we have heard, the Government have accepted many of the recommendations. There has also been a general election. I know that the Minister for Security and his team have done a huge body of work in bringing the proposals—Bill-ready, as they now are—before the House today, so I think it is some stretch to say that the measures have been rushed before us. Furthermore, I think our constituents should be reassured that, after all of that, we have a better Bill. It has been stress-tested by all the work I have mentioned, and we have the lengthy process of parliamentary scrutiny ahead of us.
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The Government say that the only new capability provided for in the Bill is the ability to require retention of internet connection records. That is certainly the area that has most caught the media’s attention. Oversight for the operation of the surveillance powers in the Bill is also reformed compared with the legislation—RIPA—that it supersedes. The new double lock means that, for the first time, the commissioners will bring an element of judicial oversight to the process of issuing warrants. I am happy with that, but I want to hear more from the Government about the practicalities of those oversight arrangements, and to be sure that the judicial commissioner will not merely look at the decision-making process that a Minister has gone through, thereby undermining the significance of the authorisation procedure.
I have no issue with Britain’s spy agencies and those parts of the police that investigate serious crime having these powers. I think that they have earned the right to be trusted, and I take the Home Secretary at her word when she says that they have foiled serious terrorist plots in the UK since November 2014. I do, however, have concerns that these powers will end up also being used for trivial purposes by those in our town halls and local constabularies who may think that they are in an episode of “Spooks”. I know that that is not the intention of the Bill, which seeks to keep us safe and equip the spooks to do their job in the 21st century—as I am sure the Minister will reiterate when he winds up the debate—but I do not want this Bill to become its own public relations disaster due to a mission creep that was never intended in its drafting.
Time is short, so in conclusion, there will always be strong emotions about a Bill such as this. Some will believe that we are presiding over an increasingly all-seeing state that reaches into our lives too much, and others will think that these measures do not go far enough. Many of our constituents will take the view that, if someone has nothing to hide, they have nothing to fear, and I have some sympathy with that. The truth is probably somewhere in between. As I said at the start of my remarks, I wish that a Bill such as this were not necessary, but it is, and a wealth of evidence suggests that the law in this area needs urgent revision. The bottom line is that we as a society give something away in return for our freedom, safety and security. That is a choice we make as an elected House of Commons and as elected representatives. There is always a compromise between liberty and security. It is unhelpful to present this issue as being all one way or all the other way. On balance, having looked at the evidence, read the Bill and talked to Ministers, I think that it contains the right combination of measures, and I will support it tonight.
5.26 pm
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP): I pay tribute to my colleagues in the Joint Committee who have scrutinised this Bill for their sterling work, and I particularly thank our Chair, Lord Murphy, and the Clerks and experts who did such a fantastic job in supporting us. Most importantly, I thank those who provided written and oral evidence to the Committee, including all those who work so hard to protect us from terrorism and serious crime. They made our understanding of these issues much clearer, even if resolving them remains incredibly difficult.
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The issues are many and varied. A number of hon. Members have focused on the right balance between security and privacy, which is fundamental to the Bill, but there are also other issues. By attempting to plug one gap in security, do we create a different problem elsewhere? That issue arises in relation to hacking and encryption. Why should we put future-proofing ahead of clearly defined powers and responsibilities? What precedent does the Bill set for other countries? There are also more practical questions, such as whether everything the Bill proposes can be done—that issue arises for internet connection records. We must assess the implications of the Bill for important freedoms and protections, including its effect on journalism, and its influence on relationships between lawyers and clients, and between whistleblowers, constituents and their MPs. What are the implications for UK tech businesses?
Despite those questions, there is undoubtedly need for legislation—no one in the House is denying that—because, as various reports have pointed out, the existing scattered miscellany of provisions across various obscure statutes undermines the rule of law. We must also remember that we are here in part thanks to Edward Snowden’s revelations, and the breakdown in trust that followed between the public and business on one hand, and intelligence agencies and law enforcement on the other. As we know, MPs—never mind the public—had no idea of extent of the capabilities that services and agencies were using.
Peter Kyle (Hove) (Lab): Does the hon. Gentleman accept that public trust is undermined when laws that are designed for serious crimes are used for minor crimes and things such as antisocial behaviour? Does he agree with the shadow Home Secretary, who called for a proportionality clause to be included in the Bill to ensure that that does not happen in practice?
Stuart C. McDonald: I have severe difficulties with some of the provisions on internet connection records in the Bill. There are tests of proportionality in the Bill, but the shadow Home Secretary was proposing a different threshold for the types of crime for which we could use internet connect records, and we will consider that proposal with an open mind.
The context informs the tests and standards we need to apply to the Bill, so we can restore the trust the hon. Gentleman talks about. First, the Bill must comply with and support the rule of law by clearly defining the investigatory powers that public institutions have available, and the limits and safeguards that apply. Of course, it must itself be consistent with the law, including international human rights law and the right to privacy.
Secondly, there must be strong oversight of the use of these invasive powers and a body that can independently scrutinise the work of the organisations using them. Going further, that body must also have the powers and expertise necessary for ensuring that the powers are not being exceeded or abused. The ability to look under the bonnet, as some of the witnesses to our Committee described it, and see what is really going on is the only way we can avoid another Snowden incident in future.
Thirdly, there is a need for the Government to shoulder responsibility for justifying each and every one of the invasive powers sought and avowed. Parliament should not give an inch without being properly persuaded of
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their absolute necessity. This is the first time Parliament has debated many of them. Some, as has been said, go further than our European neighbours or even our “Five Eyes” colleagues.
In the time available, I will focus on the second of those areas of concern, the oversight and limits on powers. The introduction of judicial oversight is, to my mind, very welcome. I do not want to re-tread the debate about whether judicial review is the appropriate standard. The minutes of the Joint Committee will record that I voted to remove that test so that a general merits test was instead what was applied. My view, for what it is worth, is that if we are going for a double lock, it should be a proper double lock with two proper bolts of equal strength. The Bill Committee will form its own view on that.
I welcome the fact that the Government have made some attempt to respond to recommendations, strengthening the oversight role of judicial commissioners through the use of an in-house legal adviser, appointment of counsel and access to technical expertise, and through their ability to communicate with the tribunal directly, and to hear from whistleblowers. However, other recommendations have been rejected, including significant proposals to make the tribunal more transparent, broader rights of appeal and public hearings. The Bill Committee will want to push further on issues such as the appointments process and the process for agreeing the commission’s budget.
Very significant question marks still remain with regard to legal privilege and the protection of journalistic sources. Much more scrutiny work is required in this area. I also remain utterly dissatisfied with the Government’s response to one important criticism of the ability to significantly modify warrants without judicial oversight, something that risks running a coach and horses through judicial protections. I accept the principle of the Bill, but there is still a lot of work to be done to persuade me to vote for it.
5.32 pm
Will Quince (Colchester) (Con): The primary duty of any Government is the security of its people. Above all, we need to ensure that those tasked with keeping us safe have the powers to do so. I congratulate the Secretary of State for listening to concerns about the draft Bill and taking steps to improve it before bringing it to Parliament. It is a better Bill than before. However, I am afraid I still have some concerns that prevent me from wholeheartedly supporting it.
First, everyone in this House wants the police and security services to have the necessary powers to intercept communications data, but the Bill goes further than that. It extends those powers to public and local authorities. Clause 64 states that a designated senior officer may grant an authorisation for obtaining telephone data to detect or prevent crime and disorder. A designated senior officer is defined as anyone at a local council with the
“position of director, head of service or service manager”.
I would suggest that there are no circumstances under which the head of waste services at my local council should be able to authorise an application for telephone data to prevent crime or disorder.
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The Bill should not give councils these powers in the first place. We have seen what happens when we extend these sorts of powers to local councils: they abuse them. We all remember examples of local authorities using terrorism legislation to rummage through residents’ bins or to spy on local paperboys. If local councils need to investigate crimes and require telephone data, my response is simple: go and speak to the police. These are very serious powers, which is why I urge Ministers to restrict them to the police and the security services.
Victoria Atkins: Local authorities will not have the powers to deal with internet connection records. Indeed, the powers of local authorities are very much restricted, following the very legitimate concerns voiced several years ago about exactly the things my hon. Friend describes.
Will Quince: I take my hon. Friend’s point about internet data, but local authorities will have the powers in relation to telecommunication data. That is still very much in the Bill.
My second concern is around the modification of warrants. Clause 30 allows the Secretary of State to add, remove or change the names of people, organisations or premises to a warrant already issued. We are told this is for situations where the same target uses different names—in other words, the use of aliases. For example, the same individual may be known as Mr Smith with O2 and Mr Clark with Vodafone. That must be made clear in the Bill. These modifications should apply only to adding, removing or altering aliases of existing targets on warrants; the Bill should not permit changing names to investigate a completely different person.
My third and final problem concerns situations where a judicial commissioner refuses an urgent modification. The Bill says that where a commissioner refuses an urgent warrant, they can require that the information collected through that warrant be destroyed or restrict how it is used, but it does not make clear the commissioner’s powers when they refuse an urgent modification of a warrant. When the commissioner refuses urgent modifications to a warrant, I would like the Bill to allow them to require that any material obtained under the modified provisions of the warrant be destroyed or that restrictions be put on its use. In some instances, judicial commissioners are not required to review or approve modifications made to warrants at all. The Government should agree that all modifications require the approval of a judicial commissioner.
Despite those concerns, I will vote with the Government today. In order that we be kept safe, we need a Bill that confirms the powers of our police and security services, but we have only one chance to get the Bill right, so I hope that amendments can be made on Report.
5.36 pm
Stephen Hammond (Wimbledon) (Con):
In the four hours I have been fortunate to listen to this debate, I have observed common purpose on two things: first, our existing, piecemeal framework of legislation around regulatory powers is outdated and not fit for purpose; and secondly, there is a widely accepted view across the House that we must do something about the changing nature of crime and the risk of terror. We, as Members of Parliament, particularly those of us who are not
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lawyers, must consider whether the Bill makes our constituents safer and strikes the right balance between security and civil liberties. The need for this revised Bill is obvious, so I will be delighted to support the Government this evening.
I want to raise an issue I have spoken about in the Chamber a number of times before. Investigatory powers are clearly essential in the fight against terrorism and, as many have said, paedophilia, but they are also essential in the fight against economic cybercrime, which is what I want to touch on now. Overall, crime in the UK has been falling, but behind that has been an ever-increasing threat from cybercrime. Some 12% of European internet users have had their social media, email or payment systems hacked, and 7% have been victims of credit card or banking fraud online. Recently, we have seen sensitive data stolen from companies and the targeting of private payment systems and financial institutions’ websites. Often, these are denial-of-service attacks.
The Opposition need to rethink their comments about economic wellbeing. My hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) was right in her intervention on the shadow Home Secretary. Interference in a banking system might cause difficulties for one or many of our constituents, and although it might not be as directly injurious to them as a bomb, surely a threat to our banking system and people’s personal financial security is a threat to them and more generally to our national security.
I think the Government have got the balance right in clause 18(2)(c) and 18(4). It is essential to consider economic wellbeing as a matter of national security. Moreover, like others, I am a student of the country’s infrastructure systems. Far too many people will not think that a small or large-scale attack on power or communications networks carries the same disruption or national security implications as a bomb and the appalling injury it could do, but the potential ramifications of such an attack are as injurious to our national security. I therefore think that the Government have got the balance right.
I say to one or two of the Bill’s opponents, particularly those concerned about bulk data collection powers, that I hope they share my contention that economic well-being is wrapped up with national security. The bulk powers have been exactly those that have been used by the security services in the last six months to identify 95% of the cyber-attacks on people and businesses. That shows why these bulk powers are necessary. I hope that all Members will support the Government and the Bill.
5.40 pm
Edward Argar (Charnwood) (Con): Today we debate what is possibly one of the most important pieces of legislation this Session—or possibly even this Parliament. I rise as a non-lawyer amid what could be described as a “brief” or even a “fee” of lawyers, so I shall seek to focus on the broader issues. This Bill goes to the heart of our duty to protect the security of our country and our constituents. A delicate balance is always to be struck between security and individual privacy and liberty. The Bill serves to protect the security of this country in the face of a changing scale and type of threat—both terrorist and criminal.
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James Berry (Kingston and Surbiton) (Con): Does my hon. Friend agree with the evidence we heard from the National Society for the Prevention of Cruelty to Children in Committee showing that the Bill is important for tackling online child abuse and for tracking children who have gone missing and are at serious risk of harm?
Edward Argar: My hon. Friend is absolutely right, and that is exactly the sort of criminality that the Bill will make it easier for the forces of law and order to tackle.
The Bill also serves in tandem to protect the privacy of the individual. That threat, domestic or foreign, seeks to find a safe place in which to operate in the darker recesses of the internet, using modern communications technology to escape justice. My right hon. Friend the Member for Haltemprice and Howden (Mr Davis) rightly said that the legislation he took through Parliament as a Minister in the past did not provide for these sort of powers. He is right, but the problem is that the nature of the threat and the technology used have moved on significantly since then. Our duty is to ensure that our security forces, whose often silent toils to keep us safe we should all respect and pay tribute to, have the powers they need to keep up with that change and the reality of the modern world and to pursue those who wish us harm wherever they seek to hide—on the web, or outside it.
As my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), a distinguished lawyer, has said, many powers in the Bill already exist in other legislation, and the additional powers provided by this legislation such as for ICRs and greater bulk collection of data are, I believe, appropriate and reasonable, and they come connected with strong safeguards.
This Bill strengthens the protections for citizens and privacy and overhauls the complex, even byzantine, existing regime governing investigatory powers, modernising and clarifying that framework. Importantly, it includes provision for judicial involvement alongside the Home Secretary’s authorisations. I personally have great faith in this Home Secretary and in her judgment as well as her accountability to this House. However, the double lock of judicial involvement provides an important compromise and further reassurance for those who genuinely and sincerely have expressed concerns.
Taken as a whole, what is set out in this Bill will provide for one of the most transparent and rigorous sets of safeguards and oversight regimes in the world. I believe it is the right approach, but I also set great store by what my right hon. Friend the Member for North Shropshire (Mr Paterson), a former distinguished Northern Ireland Secretary with first-hand experience, has said; I hope that the Minister will be able to offer some reassurance on the points my right hon. Friend raised and confirm that the envisaged system will still be sufficiently operationally agile.
I agree with the shadow Home Secretary, whom I have always regarded as a thoughtful and decent man, that finding the right balance between security and privacy is the key and that that balance is never an easy one to strike, which makes it absolutely right for this House to scrutinise what is proposed by using its fullest powers. I believe that the pre-legislative scrutiny and the scrutiny process through which we are taking the Bill through the House are absolutely fit for purpose in
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doing so. I am afraid that I cannot agree with the shadow Home Secretary’s conclusions. I am convinced that the Bill strikes the right balance between security and privacy and that what is proposed is right, necessary, proportionate and will help to ensure that those who keep us safe have all the tools they need to do that in this modern age.
5.44 pm
Scott Mann (North Cornwall) (Con): I know that there are strong feelings about the Bill on both sides of the House, but for me, it pits two fundamental issues against each other: privacy and security. Although the United Kingdom has no constitution, it is the leading light in laying down the main principles of democracy: such fundamental principles as “innocent until proved guilty”, trial by jury, freedom of expression, freedom of speech, and the right to privacy. Meanwhile, we have some of the best and most sophisticated intelligence agencies, which keep us safe and work around the clock with our world partners to tackle global crime and terrorism.
Along with their responsibility for maintaining our fundamental democratic rights, the Government have a responsibility to keep their citizens safe. Over time, the principles by which we live have evolved. In 1967, for instance, the House rightly passed the Sexual Offences Act, which decriminalised homosexuality and allowed thousands of people to openly express their love for others of the same gender. Likewise, in recent years we have seen a revolution in technology and the ability to communicate by many means: by telephone, letter, email or text message, and through the use of mobile phones, tablets, radios, computers, cameras, or pen and paper.
Even decades ago, when members of the public did not have computers or mobile phones, the right to privacy was under scrutiny as security agencies tapped telephone lines and secretly opened mail. For years the police have been able to look at people’s phone records. Just as that new form of technology had to be monitored so that criminals and terrorists could be caught, today’s emerging technologies, including encryption, should be monitored effectively. To those who oppose the extension of these powers from telephones to the internet, I say this: why should the internet be the one part of people’s lives that is off limits to surveillance? The security services must have the same ability to catch criminals and terrorists—through modern forms of communication —as they did 50 years ago.
Over the decades, we have seen a degree of balance, but in the background we have always had a Government who wish to keep us safe, and who use highly trained people and advanced technologies to identify threats in order to protect the freedoms by which we live. As the present Government address the increasing threat that we face, it is imperative that we continue to afford our citizens the same level of privacy and freedom that they have always had, and for the sake of which millions have people have put their lives on the line. I am therefore very pleased that the Government worked so constructively with campaign groups when drawing up the Bill.
In 2015, three reports concluded that the law was unfit for purpose. First, the Anderson report recommended that judges authorise communication intercept requests, and also recommended the creation of an intelligence
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commissioner. Secondly, the Intelligence and Security Committee’s report concluded that the legal framework within existing laws had developed “piecemeal” and was “unnecessarily complicated”. Its key recommendation was for a new Act of Parliament that would strengthen privacy protections and improve transparency. Thirdly, the report of the independent surveillance review by the Royal United Services Institute also concluded that new legislation was needed, and that warrants relating to national security that were signed by Secretaries of State should be subject to judicial review.
The Bill addresses the recommendations and concerns contained in those three reports. It keeps the principles of our democracy at the heart of its mission to stop criminals, terrorists, child traffickers and abusers, and, ultimately, to save lives. That is why I shall support it this evening.
5.48 pm
Dr Andrew Murrison (South West Wiltshire) (Con): Let me begin by thanking an enlightened and beneficent Whips Office for appointing me to the Joint Committee that considered the draft Bill. The Whips may have come to regret that, but I thank them nevertheless.
The Bill is largely an avowal of current practice. A blueprint for some “Nineteen Eighty-Four” dystopia it most certainly is not. However, it does improve transparency, oversight and authorisation. It does give our agencies the tools that they need to do their job, in an age when the number of terrorists may not be increasing in absolute terms, but the nature of that terrorism, and the number of tools available to the terrorists, most certainly are. Thanks to the Intelligence and Security Committee and the Joint Committee on which I had the privilege to serve, the Bill has been improved a great deal.
It is extraordinary that the right hon. Member for Leigh (Andy Burnham) should have flip-flopped since 4 November. I remember his speech well, and I remember thinking, “What a good speech! What a statesmanlike contribution!” Now, however, we have completely the reverse. The right hon. Gentleman is not in his place at the moment, but he is a decent man and I am sure that he will live to regret his abstention this evening. Since that time, we have had the introduction of the double lock, the nature and use of which have been clarified in Committee, certainly to my satisfaction. That would deal precisely with the sort of abuses that the right hon. Gentleman correctly cited in his speech.
Clause 222 will institute post-legislative scrutiny, which is extremely important. None of us can see what the situation five years hence is going to look like, although I think we can all guess that technology will occupy an entirely different space at that point. It is inevitable that we will have to review the legislation formally in five years’ time, and I am grateful that the Bill has been amended accordingly.
There has been much debate about internet connection records. Those who say we do not need them must understand what the consequences of that would be. I accept that hard cases make for bad law, but when the National Centre for Missing and Exploited Children tells us that 862 of the 6,025 cases referred to it could not be progressed without a measure to retain ICRs, we have to think about that. Those who are saying that we do not need such a measure should reflect on what that would mean for all our constituents.
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There has also been much talk about bulk powers—some of it informed, some of it rather less so. This is already covered by existing legislation, and the case for these provisions has been reinforced in an operational case that was recently published alongside the draft Bill and in the code of practice for bulk powers. I tried in Committee to get the Home Secretary to give me an idea of what she had in mind when she was talking about personal datasets. I failed completely. Indeed, the Chairman of the Intelligence and Security Committee also appears to have failed to clarify the meaning of “operational purposes”. I admit my defeat, but this matter lies at the core of our discussions today and I hope that some clarity will be shed on it. For example, are we talking about Care.data or are we simply talking about telephone directories? It is important to know this.
I am satisfied that the Bill has been significantly improved through pre-legislative scrutiny. Few Bills that I can recall have had quite so much scrutiny. I look forward to the remaining rough edges being knocked off in Committee and in the other place, and I will most certainly be supporting it tonight.
5.52 pm
Mark Spencer (Sherwood) (Con): I shall be as quick as possible because I know that others want to speak. Anybody who has teenagers living in their house understands that the world has moved on. My children hardly ever call each other on the telephone. They use different forms of communication such as WhatsApp and Snapchat to communicate with each other. We need to understand that the world has moved on, and we need to move on as well. It is make-your-mind-up time, and one thing that is absolutely clear to me is that we cannot abstain our way to a safer society. We are going to have to make difficult decisions in order to get the balance right between people’s privacy and identifying those who would do us harm.
My only concern about the Bill is whether it goes far enough. My constituents understand that you are either on one side or the other. You are either backing the police and the security forces or you are backing those who would do us harm. You are either backing the victims of crime and those who have been abused or you are backing the scumbags who perpetrate those crimes. I say to colleagues in the House today: you have to make your mind up whether you are backing the right side or the wrong side, and whether you will go into the right Lobby tonight or simply sit on your hands and hope that the world gets better. In my experience, the Tinkerbell method of closing your eyes and hoping things get better while other people do it for you does not work. So I say to colleagues: come into the right Lobby, back this legislation and let’s make sure that we are on the right side with those people who need our support and help.
The balance is pretty good in this Bill. We have judicial oversight in some of the legislation, and it is important that we give people the confidence that we have the balance just about right. Personally, I would go further, but I understand that not all colleagues would.
Criminals work in networks, through which people who want to abuse children, for example, can communicate with others who are sympathetic to their ways. It is
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often the case that if the authorities pick up someone who is smuggling tobacco, we find out that they also engage with people who are running guns, dealing in prostitution and doing terrible things across criminal networks. We need to identify who those people are and who they are talking to, so that we can shut the networks down and keep our constituents safe. I will be delighted to support the Government in the Lobby tonight and hope that my constituents will be safer both in their beds and when going about their daily life once the legislation has been passed.
5.55 pm
Rebecca Harris (Castle Point) (Con): I am delighted that we are finally bringing forward this long-overdue Bill. Cases such as Apple’s dispute with the FBI underline how modern criminals can hide behind modern technology. Criminals and terrorists are international and depend on international networks and systems. I could recite a list of the hideous terrorist atrocities that have happened throughout the world over the past year, but only today we heard of the tragic death of Adrian Ismay, the prison officer who was attacked in Belfast 10 days ago. Since the debate began, the news has been reporting armed raids in Brussels relating to last year’s Paris attacks, so we are doing current and vital work today. Such criminal acts do not simply happen and are rarely the work of individuals; they are highly organised events planned by groups, and we need to be able to uncover those networks.
The Bill is about not only terrorist activity, but all kinds of crime, such as serious and organised crime, child abduction, people smuggling and, most horrible of all, child pornography, which, horrendously, is the fastest-growing form of online business. One can now even arrange child abuse to order online. I have seen at first hand the work of the police who are trying to tackle online child pornography and it is tough, horrible, but necessary work. We must not allow their hands to be tied as a result of some wrong-headed, neurotic anxiety about data retention.
The UK is lucky to be protected by the finest, most-principled security services in the world. Their job is to conduct themselves in private to protect all the freedoms that we take for granted most of the time, yet enormous public damage was done when a previous attempt to update investigatory powers legislation was dubbed the snoopers charter. It was a gross distortion of the legislation’s aims to imply that the British Government were somehow trying to spy on their own citizens. It was just straightforward political scaremongering.
Joanna Cherry: Will the hon. Lady acknowledge that Opposition Members have been careful today not to use “snoopers charter” and have tried to be measured in their important criticisms?
Rebecca Harris: I absolutely appreciate that. I was not pointing my finger at any political party in particular, but some campaign groups outside the House may have used the term.
Many constituents, perfectly ordinary, good, law-abiding people, have written to me in the genuine, albeit absurd, belief that there is—or will be—some vast room full of security personnel trawling through their Facebook profiles and the pictures of their grandchildren and their cats.
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As legislators, we cannot just reassure people that we would need a security service the size of the population of China to do that and simply cannot afford it, even if we had the inclination, so I am glad that the Bill clearly sets out the four key purposes that data retention and investigatory powers cover. I hope that that will reassure those who have been worried and frightened. I also appreciate the benefits of the double lock, the extra judicial oversight of which will also reassure the public, although I would like to be reassured myself that that oversight will not hamper the investigative abilities of our security services and police. There are many wonderful hon. and learned Members here today but, as I sometimes hear, lawyers can often have very different views on tiny subjects when the straightforward common sense of my constituents would know exactly when we needed to regulate on something. I wish to be reassured that we are confident that we will not over-burden the process of warrantry, to the extent that security services personnel may feel that perhaps it is a little too much effort to go down that route, given that time may be of the essence and they will need to act with speed.
We all know that we are targets for international terrorists, and that the things they hate and target us for are our freedoms, democracy and liberty. We must therefore make it clear that this Bill ensures we protect those freedoms and is in no way any form of attack on them.
6 pm
Alex Chalk (Cheltenham) (Con): Striking the right balance between liberty and security is one of the most difficult judgments we have to make as a society. Anyone who has prosecuted and defended in our criminal courts—I see several here—well understands the tension that exists between the need to protect the public from harm and preserving our precious individual freedoms. This is therefore an immensely difficult issue, and if we get it wrong, the consequences are indeed serious. But the fact that we are able to approach this Bill in a calm atmosphere, and not against a backdrop of the panic and emotion of a recent outrage, is in no small part due to the constituents of mine working at GCHQ. Their quiet, brilliant work saves lives. They avoid the limelight and do not seek our thanks, but we owe them a profound debt of gratitude.
It would be a great mistake for calmness to give way to complacency, as serious plots are thwarted with alarming regularity. Before I came to this place, I was part of the team that prosecuted five young British jihadis who had travelled from Birmingham to Dewsbury intending to detonate an improvised explosive device filled with nails at a public rally. Had the plot succeeded, the potential for carnage would have been horrifying, and I have no doubt that we would be experiencing the repercussions today.
In my experience, the people in the intelligence agencies I have met, both as a barrister prosecuting terrorism offences and since my election, are scrupulous about remaining within the law. That means we have a covenant with them. We must provide them with a piece of legislation that gives them the tools to keep us safe, but we also owe it to them to create a framework containing the safeguards needed to command public confidence—nothing less than that will do. I believe that this Bill gets that balance broadly right and it deserves a Second
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Reading. That judgment has been possible because the Government have listened carefully and responded in appropriate detail to the legitimate concerns raised by the Joint Committee on the Draft Investigatory Powers Bill, the Intelligence and Security Committee and the Science and Technology Committee. However, valid points have been raised today, for example on whether we ought further to limit the pool of agencies to which ICRs can be available, and on the threshold for the type and seriousness of criminality that ought to trigger their use. Those legitimate points have been properly raised, but they can be raised in Committee.
I do not have the time to examine more than a fraction of what this Bill contains, but I wish to say a few words about bulk powers. The bulk data powers in the Bill are not new. The law today has long allowed the security and intelligence agencies to acquire bulk data under RIPA and so on. Those powers underpin a significant proportion of what our security services already do.
Joanna Cherry: Does the hon. Gentleman accept that at the time the Act he has just mentioned was passed, bulk powers were not in people’s contemplation? Therefore, although that Act may have been retrospectively interpreted to cover bulk powers, they have never before been debated or voted on by this House.
Alex Chalk: The hon. and learned Lady is absolutely right about that, but what is important about this Bill is that it shines a light on precisely those powers: it clarifies and consolidates them; it unifies them into a single document; and, crucially, it strengthens the safeguards that govern the security and intelligence agencies’ use of them. That is precisely why this legislation is so important. Crucially, in future, warrants for bulk powers will need to be authorised by a Secretary of State and approved by a judicial commissioner, which means we can be satisfied that those powers will be issued only where it is both necessary and proportionate to do so. Each warrant must be clearly justified and balance intrusions into privacy against the expected intelligence benefits.
There is so much to say, but time is limited. The upshot is that this Bill is not the finished article, but it forms the basis of a strong piece of law. I believe it can have as positive an impact as the Police and Criminal Evidence Act 1984, by updating and clarifying the law for those having to apply the relevant powers, while strengthening safeguards for those who are subject to them. If we get the detail right, I believe this Bill has the potential to become world-leading legislation. We should give this Bill a Second Reading.
6.5 pm
David Warburton (Somerton and Frome) (Con): Speaking as one of the few non-lawyers present, I must admit to having been moved by the powerful speech by the hon. Member for Belfast East (Gavin Robinson), who is no longer in his place, about attacks in his constituency.
We instinctively baulk at the idea of expanding the powers of the state in this area, but the question is not whether we should expand them; if we are to maintain the same level of security as technology develops, we have to expand our capabilities. I am pretty confident that no Government Member would be keen to extend the powers of the state as a philosophical end in itself.
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The question is how and to what degree we maintain the equilibrium with regard to technology as it keeps diversifying and threats as they keep growing.
I shared the unease of some colleagues on both sides of the House about the original Bill, but I am reassured by the Government’s reaction and the subsequent changes. The Bill now offers a far clearer commitment to privacy, and I welcome in particular the additional protection it offers journalists, the limits on powers over bulk personal datasets, and the time limit on the examination of personal information extracted from databases.
We must, however, decide where the line should be drawn. The appalling events in Paris last year show clearly that our intelligence services face an enormous challenge in securing the absolute safety of the public while using incomplete and fragmented information. Terrorism is the simplest form of barbarism, but it is being conducted through modern means. If police and intelligence services are to be effective, they must adapt to that modern landscape.
As we have heard, the judicial double lock is a valuable safeguard in providing a check on the powers of the Executive. The Bill provides unprecedented detail about what those powers are and how they are exercised and overseen.
However uneasy we may feel about internet connection records or thematic warrants, that does not compare to the infinitely greater unease we ought to feel about our intelligence agencies being unable to use those tools to keep us safe. In a democratic country with such a tradition of liberty, such measures are always proposed reluctantly, but when the asymmetry between the state and the threats it faces is more apparent than ever, the arguments are pretty convincing.
The creator of England’s first systematic intelligence services, Sir Francis Walsingham—it was some time ago—wrote:
“There is nothing more dangerous than security.”
Today, unfortunately, that is more true than ever. With that in mind, I accept the clarity, effectiveness and necessity of this Bill.
6.8 pm
John Glen (Salisbury) (Con): I strongly support the principles behind the Bill, and I accept the provision for ICRs and the progress made towards achieving a balance between politicians and judges having oversight.
In the few minutes I have available, I want to focus on issues relating to technology. The Bill needs to be robust enough to deal both with technology as it actually is and with how rogue actors can use it. The principle of the security services having the right to intercept communications and to obtain relevant communications data, subject to the safeguards in the Bill, is absolutely vital. As a consequence, certain technical obligations must be placed on telecommunications operators to enable that to occur. In particular, clause 218(4) allows the Secretary of State to issue a notice to a communications provider, creating an obligation to remove
“electronic protection applied by or on behalf of that person to any communications or data”.
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My concern is that the Bill must distinguish sufficiently between two very different ways of removing electronic protection. One is technically called an instance break, which is where one instance of a communication is accessed and decrypted. Not all communications of that type are decrypted. If we want to access another communication, we have to do the process again. The second is technically called a class break, which is where removal of electronic protection is not at the individual level, but at the level of the data encryption system itself. This is the problematic form of backdoors, where a platform or protocol has an inbuilt vulnerability that should, in theory, be known only by software engineers. Once we have the generic override, it can be applied to any communication that uses that platform or protocol.
We must acknowledge the increasing technological sophistication of the individuals who threaten our security, and that is obviously why the Government are introducing this Bill. Given that, we cannot realistically expect the inbuilt vulnerabilities in data encryption to remain secret only to those who create them. My concern is that, sooner or later, we should expect those vulnerabilities to be maliciously exploited by the same groups that we are trying to fight. Those measures intended to increase security would pose a greater security risk if exploited, as malign forces could then access a whole set of encrypted communications, not just one instance.
The distinction between an instance and a class break has long been recognised by the industry and is technically clear cut. It is usually much less financially costly to build in a backdoor, but much more dangerous to the integrity of a communications system. The Bill as it stands takes account of the financial cost of complying with a notice, but not the wider security implications. I hope that the Minister will seriously consider explicitly ruling out any obligation to create inbuilt vulnerabilities in software or communications systems and to require the Secretary of State to have regard to the preservation of electronic protection as a whole when she authorises the removal of it in one instance.
For this Bill to work, it must take seriously technology as it actually is, not as we hope that it might be. Creating backdoors may be cost-effective, but could create even greater vulnerabilities in our communications infrastructure and present a critical danger to national security. I support this Bill in its principles and its safeguards, but I hope that this listening posture of the Government will continue so that we can absolutely ensure that we get it right.
6.12 pm
Matt Warman (Boston and Skegness) (Con): We have today heard much talk about this Bill being rushed. I have had the privilege—that is one word for it—of serving on not one but two Committees looking at this Bill. I am talking about the Joint Committee and the Science and Technology Committee. I can assure the House that neither of those Committees felt that it ran short of time when it came to scrutinising this Bill. Who knows? I might get lucky and find myself on the Bill Committee to scrutinise it yet further. Importantly, the level of pre-legislative scrutiny that this Bill has undergone is extensive and will be followed by the standard level of scrutiny that all Bills face in Parliament.
I wish to talk briefly about two specific points. The first is on internet connection records. We have heard today that they are not equivalent to a mobile phone
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record. I would accept that point but for the fact that the internet connection record clearly is, in many ways, the modern way in which we are able to track what sort of surveillance is necessary. If we were looking at the lives of people around 10 or 20 years ago, we might simply have used the telephone. The way that we all live our lives today is through our mobile phones, through the internet, so the level of surveillance is a modern equivalent, proportionate response if we look at it through the lens of modern life. It is a marginal difference to move from the phone record, with which we have become so comfortable, to ICRs. That is why the Joint Committee was comfortable with the concept of ICRs, although I accept that there was not total unanimity on that point.
The second point relating to the ICR is that it is not a dragnet, despite what we heard from the Liberal Democrats, because it still requires approval from a judge or the state for any of this information to be accessed. I believe it is irresponsible to call it a dragnet, and I praise both the Labour party and the SNP for avoiding phrases such as “snoopers charter”. Secondly, I would praise the Government for not asking for keys to encrypted communication—for making explicitly clear the point that we are not asking Apple to build in a backdoor to everybody’s iMessages, and we are not asking for major technology companies to do things that they say “protect” their users.
However, I would raise a final point, which I think is more important. The Bill is an acceptable, to me, and sensible way of living with the modern world of encryption, but it does not address the modern world in which we live that says it is sensible for every citizen to have access to weapons-grade encryption. I fear that if it is accepted that there are dark spaces where the state simply cannot ever go, we are not having the debate in Parliament and in the nation that says it is not sensible for citizens to be perpetually suspicious of the role of the state in their lives, when in fact the state is that which may best keep us safe, rather than that which we should seek privacy from in every possible circumstance.
6.16 pm
Lucy Frazer (South East Cambridgeshire) (Con): Every day we compromise our right to privacy. Consciously or not, we are increasingly willing to share aspects of our everyday life with others. I will take just three examples.
The first is Google. Google’s online terms of service expressly state that it analyses content, including emails, to provide personally relevant product features. Secondly, by having location services enabled on our phones, we are allowing a third party to record and keep track of where we have been, for how long and how often. Thirdly, we are privately recording each other. According to a recent estimate, in one day in Manchester a person is likely to be caught on CCTV 100 times, in circumstances in which 1.7 million of the 1.85 million surveillance cameras are privately owned.
We are therefore already exercising choice, limiting our own privacy, and we do so willingly, simply to maximise convenience and to allow us to use a free service. There is a saying, well known in security circles, that unless you are one of a very small group of people, Tesco already knows a great deal more about you than MI5 ever will.
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The question I have is this: when we are happy to share such information with international corporations, which have expressly stated that they will share our data with third parties, why do we push back at the prospect of the intelligence, police and crime agencies collecting data to improve the security of our nation and to protect our citizens, and especially when it is proposed that these powers be exercised with clear safeguards, transparency and judicial oversight?
I have had the privilege of working as a barrister. I have been fortunate to act for the National Crime Agency and HMRC, to bring those allegedly involved in money laundering to justice and to recover tax, and I am acutely aware of the need for investigation and evidence when calling to account those who are adept at covering their tracks.
I have read the detailed and thorough report that David Anderson prepared as part of his initial review, and I should also declare that I was fortunate to be his pupil when starting out as a barrister. [Hon. Members: “Ah.”] “A Question of Trust” highlights the importance of communications data in every aspect of security and crime detection and prevention. In his report, David Anderson stated that in 26 recent cases of terrorist activity, where 17 resulted in a conviction, 23 could not have been pursued without communications data, and in 11 cases the conviction depended on the data. That compares to Germany where, at the time of the report, data retention arrangements were not in operation. There, 377 suspects were identified, seven could be investigated and no arrests were made.
The right to privacy is not an absolute right. As individuals we choose daily to trade it in for our own convenience, but even lawmakers in the field of human rights have recognised that it is circumscribed. Even in article 8(2) of the European convention on human rights, which protects the right in generic terms, the right is qualified in the interests of national security and the public interest. The price of freedom is constant vigilance, because freedom is not anarchy.
6.20 pm
Simon Hoare (North Dorset) (Con): I support the Bill, having not had the privilege of ever being a lawyer. Occasionally, that is quite useful as it brings an element of common sense to the debate. I support the Bill because I believe it is balanced, proportionate and needed. It has a subtle nuance of equilibrium between the rights and the powers, between the state and the law enforcement agencies and the rights of individuals. I say that not because of any ovine tendency, but because I happen to believe that it is true.
We have listened this afternoon to the Opposition parties in glorious abstention. Their absence from most of the debate underscores the lack of seriousness with which they take national security. They have sat slightly like the vestal virgins, positioning themselves as the guardians of the flame of some cherished civil liberty, often dancing on the head of a legal pin, where this test has not quite been met or that hurdle has not quite been covered. We will wait and see what happens on Report.
I speak as a father, a husband, a son—somebody, I hope, with common sense, who believes that at the heart of the Bill is the Government’s sincere intention to deliver what they were elected to do—that is, to strive
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and to put in place mechanisms to defeat and frustrate terrorism, to protect our children and our young people, to try to address the problems of drug and people trafficking. Listening to the Labour Opposition, in years gone by, they probably would have complained that the magi had been intercepted and that Herod was allowed the slaughter of the first-born as a result.
Nusrat Ghani: Perhaps we should reflect on the view of experts. When David Anderson gave evidence to the Home Affairs Committee, on which I have the privilege to sit, he said, “My view is that if the police and the intelligence agencies can prove that they need those powers to do their job of keeping us safe, then the powers need to be there.”
Simon Hoare: My hon. Friend is right. Those of us who took part last summer in the debate on the Anderson report, which was a very thoughtful cross-party debate, would have drawn a huge amount of comfort from what David Anderson said.
The Home Secretary and the Foreign Secretary have come to the right conclusion with the dual lock, a judge and specially trained commissioners. Their training, experience and understanding of the issues will need to be demonstrated so that the House and the public can have confidence in their judgment. It is crucial that Ministers of the Crown, accountable to this place and the electorate, will take those decisions and then be peer-reviewed by the judiciary.
The business of government, as we all know, can often be difficult, and we have people doing good work in difficult circumstances in our name. I am convinced that they do it to the highest of standards and to the zenith of professional integrity, but with the sole focus which is underscored in every line of the Bill—that the first duty of Government is the security of the realm. The nation at last should know that the Government take that seriously. The glorious principle but fairly impotent abstentions of the Opposition parties speak volumes.
Mr Speaker: Order. In seeking to accommodate remaining colleagues, I am afraid it is necessary now to reduce the time limit on Back-Bench speeches to three minutes with immediate effect.
6.24 pm
Mr Alan Mak (Havant) (Con): I welcome the Bill because the consolidated and updated powers can be used to tackle a wide range of threats, both new and old. However, my remarks will focus on a new, growing and specific threat: economic cybercrime carried out over the internet.