Investigatory Powers Bill
Lord Carlile of Berriew Excerpts(7 years, 8 months ago)
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Lord Murphy of Torfaen (Lab)
My Lords, I support my noble friend’s amendment, which he very ably moved. As he said, it is the only amendment recommended by David Anderson QC with regard to his latest report.
The issue of bulk powers is enormously important and this is the first time that the Committee has had an opportunity to discuss the report on the whole question. It was discussed at some length by the Joint Committee, which I was privileged to chair. The committee took both oral and written evidence and finally came to and made 23 conclusions and recommendations on bulk powers in its report to both Houses of Parliament. We asked the Government to give a fuller justification for bulk powers, which they did. We were worried about the need to ensure that Article 8 of the European convention would be complied with. We said that the Investigatory Powers Commissioner should report within two years on proper safeguards around these powers, that a proper code of practice on equipment interference and indeed on bulk personal databases should be established, and that the ISC should look at the issue of bulk personal databases.
I think that the other place took a wise decision in asking the distinguished Mr Anderson to look in enormous detail at bulk powers, and it seems that he has made an overwhelming case for bulk interception, bulk acquisition and bulk personal databases. The case for bulk equipment interference was less strong, but nevertheless still there. As I say, the operational case for bulk powers was impressive and the report sets out the need for these powers to deal with terrorists, child abuse, cyberattacks on companies, rescuing hostages in Afghanistan and organised crime. What particularly impressed me is the importance of speed in these operations and of the powers to deal with all these problems being used quickly to ensure that proper information can be given to the appropriate agencies.
Mr Anderson inevitably looked at the alternatives to bulk powers, but said that they,
“would often be less effective, more dangerous, more resource-intensive, more intrusive or slower”.
Having said all that, there still needs to be a proper regime of safeguards if Parliament finally agrees with the Government about the bulk powers provided for in the Bill. We should look at those proper safeguards. Clearly the use of both a judge and the Secretary of State is important. I believe too that the Intelligence and Security Committee of Parliament should look very carefully indeed at the use of bulk powers in the months and years ahead.
Finally, my noble friend referred specifically to the single recommendation for the setting up of a technical advisory panel. It is worth reflecting on the fact that in his report, David Anderson said that the panel would deal not only with technological changes but with how MI5, MI6 and GCHQ could reduce the privacy footprint of their activities. That is why I support the recommendations and the conclusions of the Anderson report and I urge the Government to ensure that in implementing it there are proper safeguards as we go forward in these hugely changeable technological times.
Lord Carlile of Berriew (LD)
My Lords, other noble Lords have taken the opportunity in addressing this amendment to make some general comments about David Anderson’s excellent report on bulk powers, so I shall do the same in what I hope will be just a few words. In my view, Mr Anderson has made a powerful case for the need for the bulk powers that he describes. They are very much a part of the fight against terrorism. Similar powers have been used well by the security services and authorities in this country and—touching wood and crossing fingers—that is the reason why we have not experienced, for example, what happened in Nice. I agree entirely with what has just been said by the noble Lord, Lord Murphy, who as we know has considerable experience in dealing with and judging these matters, and I share his view that the safeguards should be as strong in every way as has been recommended by Mr Anderson.
Turning to the question of the technology advisory panel, I have complete sympathy with Mr Anderson’s menu but not necessarily with the recipe. With respect to him, I think that we might do rather better than his suggestion of the way in which a technology advisory panel is established. I suspect that he would be the first to agree that what he is concerned with is not the form of the panel, nor to whom it is accountable, but the substance: what it does and what it sets out to achieve.
My suggestion to the Government is that we could broaden the technology advisory panel’s scope and make it more acceptably accountable. The suggestion by Mr Anderson is an unusual one, in that the panel should be appointed by, and be accountable and report directly to, the Investigatory Powers Commissioner. That suggests that it has a pretty narrow scope. In my view—obviously, I use my now rather historical experience as the previous Independent Reviewer of Terrorism Legislation—a technology advisory panel would indeed be valuable, but not just to the Investigatory Powers Commissioner. My suggestion is therefore that this panel should exist but that it should be appointed by the Secretary of State and, through them, should be accountable to Parliament, at least in a general sense.
The advice given by the technology advisory panel would of course be available to the Investigatory Powers Commissioner, but he is not the only commissioner. It would also be available, if appointed by the Secretary of State and accountable in that normal way, to parliamentary committees and other commissioners, to which it could give advice. Indeed, my hope is that a technology advisory panel, or something with a similar name and that intent, should, like the Independent Reviewer of Terrorism Legislation, publish not only annual reports but tasked reports on specific issues raised —of which the Anderson report we are discussing is a very good example.
The technology advisory panel, if appointed on a broader basis with that greater accountability, would help considerably without placing undue burdens on the security services, the police or GCHQ. Indeed, they, too, would be able to turn to it if they wished to; it would be a matter for their chiefs. We have some experience present in this House as we speak.
I hope that we can adopt the spirit of this part of Mr Anderson’s remarkable report, but perhaps look at ways of making it even more useful than he had in mind, and with forms of accountability that we in this House and the other place understand more readily.
Lord King of Bridgwater (Con)
This is a very limited amendment in one sense, but this has become something of a Second Reading debate on the Anderson report, and I congratulate the noble Lord, Lord Rosser, on the way he introduced it. He made it clear that there is a considerable degree of common ground on the importance of these powers, which have been so carefully scrutinised by Mr Anderson. The whole House will recognise the great debt that we owe him. People not just in this country but in many others will read this report with great interest. As we have said before, there is no doubt that the threat is severe and very real, and we need to ensure that we have all reasonable methods of combating it. We will go further into this issue. I listened with great interest to the comments of the noble Lord, Lord Carlile. I will also be interested to hear what my noble friend the Minister has to say about the panel and the noble Lord’s recommendation. Even if it is not identical to what he recommends, something along these lines may well have considerable merit.
Investigatory Powers Bill
Lord Carlile of Berriew Excerpts(7 years, 9 months ago)
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The Lord Bishop of Chester
My Lords, I, too, was a member of the Joint Committee. This is the first time I have spoken on the Bill, for various reasons, and I pay tribute to the noble Lord, Lord Murphy, who chaired us so splendidly. The Bill has gone through a model of pre-legislative scrutiny. Compared with the state of most legislation that comes to us, it has really been chewed over, not least in the Commons, to improve it further. I am broadly comfortable with it.
It is good that we are looking at these issues because we are pushing the boat out. Inevitably, in the internet age, we are having to do things we have not done before. I understand the practical challenge of keeping internet connection records effectively. The Danish experiment is salutary—they effectively abandoned it. We had a witness from Denmark who explained it all to us: they had tried and failed. I think that the case for having access to internet connection records has been made. There is a document to which no reference has yet been made entitled Operational Case for the Use of Communications Data by Public Authorities—that is, other than the police—which lists about 20 authorities, such as the Financial Conduct Authority, and sets out case by case the value of having such records. I was with the majority on the committee which felt the case has been made in principle.
The Bill sets out various checks and balances. The companies which will be required to keep these records have a right to appeal against the notice and that must be discussed with the Information Commissioner to ensure that what is being asked of them is practically possible. They must put in place adequate security systems to ensure that the internet connection records which are retained are properly secure.
There are practical questions because we are pushing the boat out a bit internationally as to how this is to be achieved and how much it will cost. As I understand it, the cost will not fall on the companies concerned but will be reimbursed to them by the Government. It would be helpful to know the latest estimate of those costs. I have a feeling that it was about £200 million when we met in the committee, but it would be good to know just what it may cost.
At the end of the day, we live in an ever more fragile and dangerous world and there are good reasons for thinking that that will be the case in future. If we can provide this tool, with proper safeguards, to the police and other agencies it is well worth doing, but we should not underestimate the practical difficulties of being the first country to do this effectively; there are real questions there.
Lord Carlile of Berriew (LD)
My Lords, after a good deal of thought, my conclusion is that I support the conclusions of the Joint Committee, not the amendments. I previously joined the noble Lord, Lord King, in trying to bring provisions such as this to the statute book rather more urgently. I agree with his comment that it is the most scrutinised Bill we have ever seen—certainly in my more than 30 years in one or other House of Parliament. It was published with three independent reports supporting it, one of which, David Anderson’s report, was extremely complete and considered every aspect of the proposed legislation. It comes to this House with more documents published by the Government, including some of the inner work of GCHQ, than we have ever seen before. It is a great tribute to GCHQ that it accepted the advice that many people outside its establishment gave to it that it should reveal more of what it is doing. I absolutely agree with what has been said by the noble Lord, Lord Evans, who had great experience of these matters throughout his career until he entered your Lordships’ House.
What are we really trying to achieve? I think that we are trying to achieve what we already do when we have the opportunity to do it. There is a clear analogy here with mobile telephony records. As the Crown Prosecution Service has said, in 95% of the serious cases that are tried—when there is a not guilty plea, in other words—in the Crown Courts, mobile telephony records and cell site analysis are used as an extraordinarily powerful tool contributing to the conviction of very serious criminals.
On this occasion, I am not going to bore your Lordships with anecdotes about cases that I and other noble Lords have been involved in, for the simple reason that there are far too many cases to describe from those anecdotes in which mobile telephony records have been used to good effect. What technique is used—or has been used up to this stage, until this Bill is enacted—for accessing mobile telephony and internet connection records? Where they are available, the police and other authorities try to obtain access to them; when they obtain access to them, they can track the activities of the people whom they suspect; and, when they can track those activities to good, evidential effect, they use them. The result of that is to be able to put extremely powerful evidence before the courts. All that we are trying to do in this Bill is to create a reliable system that is as uniform as possible so that this type of information can be used in all cases.
Underlying the criticism of this provision is some kind of mythology about the activities of the security services, GCHQ and the police. There seems to be a myth about that they are so bored, so inactive, so idle and so inert, and suffer from such excessive curiosity, that they have the time to look at the completely uninteresting, irrelevant internet records of any member of the public for something to do. That is an appalling suggestion, quite apart from the extremely strong discipline exerted—and I looked at this in some detail when I was Independent Reviewer of Terrorism Legislation and subsequently—on members of those security services. There are some far more experienced than me in this House, sitting in this House today, but I am sure that those noble Lords and noble Baronesses would agree that, if people were so stupid as to use their time in the security services to look up our credit card accounts, for example, they would be in very serious disciplinary trouble. So let us put that canard aside.
Let us also remember that we are not comparing like with like when we talk about other countries. The Joint Committee came to the conclusion—and the Government have, rightly, come to the same conclusion—that the Danish experiment failed because it was different and did not use the most appropriate technology. It was unfortunate for the Danes—they did it before we decided to do it—but the fact is that the Danish experiment is irrelevant to this discussion. Let us not forget, too, the powers of investigators in other countries. We are setting down in this Bill controls of the security services and anybody else who wishes to obtain access to those records, which will be the best controls in the world. We are ahead of the rest of the world in these provisions.
Compare it with what juges d’instruction can do, for example, in France or Belgium. If any one of us is an accused in France or Belgium or any other country on the continent where they have that kind of system, not only will the juges d’instruction have access to those records in any event, and not only do they have powers to direct that they have disclosure of those records to themselves, but the subject will never have the faintest idea that that has been done. Although it is tempting to compare what we do in this country with a number of other countries, it is misleading because no two systems are the same.
I agree with the right reverend Prelate that this proposal has been examined. It has had as objective an examination as one could imagine. It is a matter of record that my noble friend Lord Strasburger, like it or not, agreed with the committee’s conclusion. History will say that he agreed with that conclusion because it is there in the committee’s report. It is now time that we move on, accept that this Bill contains an objective analysis and pass this important set of provisions which will help our authorities to catch the most serious criminals, including hundreds of paedophiles, as alluded to by the noble Lord, Lord Evans.
Baroness Butler-Sloss (CB)
My Lords, I have not spoken at all on this Bill so far but I should like to make a practical point following what the noble Lord, Lord Carlile, and previous speakers have said. I speak as a former family judge who over the years has been very involved in safeguarding. One of the most important things is to be sure that the police—it is really the police that we are talking about, rather than the security services—have all the tools that they can possibly have to be able to convince a jury, on a prosecution, that a really serious crime has been committed. If this is going to catch even more paedophiles I endorse it, and I hope the House will agree with me.
Investigatory Powers Bill
Lord Carlile of Berriew Excerpts(7 years, 10 months ago)
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Lord Brown of Eaton-under-Heywood (CB)
My Lords, I confess to taking a rather different view of this. This is a question of judicial oversight; it is not in principle judicial initial decision-making. I am perhaps a little out of date, although I have been at pains to keep up to date with developments, and as the noble Baroness and the noble Viscount have already recognised, there have been significant developments. This is not just about process; it is not what used to be called Wednesbury review, or perversity or irrationality. Nowadays it has developed into an appropriately flexible standard of oversight. Even without the explicit requirements to look at the necessity, the proportionality and the requirements of the human right to privacy, as there are here, there is in the modern concept of judicial review an ample opportunity.
In recent cases—I am looking at the Judicial Review publication of March of this year, so it is fairly up to date—the noble and learned Lord, Lord Mance, in one of these recent cases such as Kennedy, Pham, and so forth, said that it was,
“improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or”,
the EU law principle of proportionality. Therefore, even without the explicit requirement to look at proportionality, as there is in respect of all these oversight obligations, there is here an appropriate degree of flexibility.
You want an element of flexibility—you want the judge plainly to be able to take account of the nature of the underlying decision he is reviewing and of the extent to which there has been an invasion of privacy, against which this judicial oversight is designed to protect the citizen. This matter has been thrashed out; if you read the two days of debate in the other place, you see that there was some appropriate degree of give. However, I respectfully suggest that the oversight as now provided for is, if not more than adequate, certainly adequate.
Lord Carlile of Berriew (LD)
My Lords, we first have to decide what we want. Do we want judicial decision-making on these warrants and similar provisions, or the judges to review the legality of ministerial decisions? In my view, as a matter of constitutional principle, we do not want the judges to make the primary decisions but to review the legality of those decisions. I agree entirely with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in this regard.
For the nerds among us, there is a regular publication called the Administrative Court Digest—the AC digest—which I read with enthusiasm every time I receive it. It is extremely interesting, because it demonstrates that judicial review is not some kind of dry, legalistic test of precise processes followed by government and government officials but a wide-ranging test of legality. If the factual decisions that have been reached are so wrong that they should properly be regarded as unlawful, they are judicially reviewed as unlawful.
Viscount Hailsham
They have to be very wrong before such a conclusion can be arrived at.
Lord Carlile of Berriew
With great respect to a respected lawyer, that is not correct. If the decision is disproportionate, these days it is subject to judicial review. If the noble Viscount would perhaps take his weekend to read through the AC digest, he would find that in example after example, relating to every department of state. I am therefore content with what is offered by the Government, and so, importantly, is David Anderson, the current Independent Reviewer of Terrorism Legislation. I hope that we will proceed fairly quickly beyond this issue.
Lord Tebbit (Con)
My Lords, I will say just a few brief words. I am not a lawyer but I have held executive authority as a Minister over a number of years. I do not think a judicial review ever found against me, but in those years life was very much simpler. There were three classic tests: was my action, or that of any other authority, ultra vires; was it so unreasonable that no reasonable-minded man could have taken it; or was it contrary to law? I knew where I was.
From what I have heard today, that beautiful simplicity has gone. Now I would have to guess at what might be in the minds of the lawyers who would review my decision and conclude that theirs would have been rather better. But then the lawyers would back away. They do not have to take responsibility for their decision; that is left to the Executive and it is not quite fair. Why should the Executive be landed with the statement, “You were wrong—get on with it”, when, by all normal standards of common sense, their decision was perfectly reasonable? We are more and more getting into the territory where judges take decisions that should be taken by Executives and I do not like that.
Lord Carlile of Berriew (LD)
My Lords, I support the noble Lord, Lord Pannick, in these amendments. I agree with him entirely that LPP is a very important right that is key to the application of the rule of law.
It seems to me that there are two iniquities that form a legitimate target for the interception of communications between lawyers and their clients. The first is where the lawyer is committing a criminal act, which already removes LPP in any event; it does not need any additional provision to declare that.
The second more difficult iniquity, which was adverted to by the noble Lord, is where the lawyer is the innocent instrument of a criminal act. I know that your Lordships’ House does not like anecdotes, particularly not from Members who are lawyers, but may I be permitted a very brief one, which was referred to by the noble Lord, to whom I told it in the car park a couple of nights ago? I defended a man who was arrested, properly, for stealing quite a large amount of explosive from a quarry store somewhere near Blaenau Ffestiniog in north Wales. He had quite an experienced solicitor from Dolgellau who later spent many years as a distinguished Member of another place. He was the duty solicitor who went to see the suspect in the police station—this was before computers. The suspect wrote out a message, which looked perfectly innocent, and asked him to pass it to the suspect’s girlfriend. The solicitor went back to his office, telephoned the girlfriend and passed on the message.
At 2 am the following morning the Metropolitan Police arrived at the suspect’s flat in the East End of London to raid it and take away all evidential material that they could find. There was not much. The carpets, rugs and wall hangings had been removed, as had every cup, saucer, knife and fork. The place had been deep cleaned, complete with disinfectant, and there was no evidence to be found. It is a good example, and a real one, of the way in which a solicitor acting innocently was an instrument of iniquity. It was valuable to the defendant because there was an issue about why he was stealing explosives, and really he could say what he wished when it came to his guilty plea for stealing the explosives because there was no contrary evidence. So it is obvious that, within clear limits, that iniquity should be dealt with.
I turn to the contentious powers, the third category dealt with by the noble Lord, Lord Pannick. I say to your Lordships, particularly to the Minister, that this raises difficult ethical issues for lawyers. Lawyers are entitled to know the answers to these ethical problems if the interception of communications between lawyers and their clients is to be permitted when the first two categories do not apply. I happen to have an office that overlooks a convenient garden square, which has a number of comfortable benches in it—a very attractive place to have a consultation with one’s client on a sunny summer morning or afternoon. However, will I be acting properly as a lawyer if I say to my client, “I think we should go out and have our consultation on the bench out there. There’s a risk that what we discuss while sitting in this very pleasant office will be intercepted, since they can do that and we have no idea whether or not they’re going to, so let’s take the safe course and go and sit on the park bench”? Is that an ethical approach from a lawyer or not? We are entitled to know how the profession should conduct itself.
I would go further than that ethical dilemma. What we are talking about is a balancing exercise. There may be a very small number of cases in which the answer to the question from the noble Lord, Lord Pannick, would be, “Yes, we did obtain some material which was of some use in a case or two over the years”, but, on balance, that will arise extremely rarely. Listening to communications between lawyers and their clients—a thankless task, almost by definition—is most unlikely on many occasions to reveal evidence useful to the authorities. Of course, they have many other ways of obtaining evidence.
I urge the Government to be extremely cautious about this. I urge them to listen not only to the considered views of the noble Lord, but to the carefully prepared and briefed views of the various organisations which have been referred to, including the Bar Council and the Law Society, and not to introduce a third type of non-existent iniquity just for the sake of convenience on the odd occasion that might arise.
Lord Lester of Herne Hill
My Lords, I can be remarkably brief—for a barrister. The answer to the question from the noble Lord, Lord Pannick, was given by Mr Justice Felix Frankfurter in a famous phrase in a case many years ago where he said that one should not burn the house down to roast the pig. As the Bill stands, this is exactly the problem. Taking a power of this breadth risks burning the house down to roast the pig.
I do not have the ethical problem referred to by the noble Lord, Lord Carlile of Berriew. Of course he should go and sit in the park in order to prevent the Orwellian nightmare of being snooped upon. That is perfectly ethical, but it would be outrageous if we, as members of the legal profession in Scotland, Northern Ireland, Wales or England, had to take that kind of precaution because of the hypothetical chilling effect of thinking that we were under surveillance.
I do not think it is necessary to take this power and I look forward to listening to the hypothetical or real examples that might be given to seek to justify where we now are. I thoroughly support this Bill, so I hope that the Government will give way on this because at the moment they are in an unattractive position.
Lord Keen of Elie
I am obliged to the noble Lord and I am coming to the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am not entirely unfamiliar with the case of Klass, and I thank the noble Lord for drawing it to our attention. We recognise that if this exceptional power is to be maintained in the Bill as it is in existing legislation, and if the safeguards in the existing code are to be improved, we must address that very clearly. That is why I have had ongoing discussions with the Bar Councils, the Scottish Bar and the Law Societies to try to achieve some consensus on this point. I therefore welcome the amendment because we are still considering the issue and we recognise the need to ensure that such an exceptional power is properly safeguarded. As to the actual means, we have not come to a final conclusion, but I note the suggestion of the noble and learned Lord, Lord Brown, and I am conscious that that might be one approach. However, I cannot commit us to any single approach at this time. I underline expressly that this power would only ever be employed in exceptional circumstances.
I rather think we are circling the same point. Of course the Government recognise the concerns that people have with regard to legal professional privilege. We understand the critical nature of that privilege and that any intrusion on it calls into question its effectiveness in the context of the rule of law. I go back to the point made by the noble Lord, Lord Carlile, that a balance must be struck here, but if there is a balance, there has to be something on each side. The question now is what we can put in place on our side.
Lord Keen of Elie
Perhaps I may finish before the noble Lord intervenes. That is why we will keep this under consideration for the purposes of Report stage.
Lord Carlile of Berriew
What the Minister has said is welcome, because we do not want to vote on this on Report but to try to find consensus on an important issue. In addition to considering the proposition of the noble and learned Lord, Lord Brown, I ask the Minister to try at least to provide the Committee with some qualitative evidence without breaching national security. I respectfully suggest that it might be worth talking to his friends in the Northern Ireland Office, who have enormous experience of this kind of issue. If it emerges that, even in that department, this kind of exceptional power has not had to be used for any useful purpose in the past 20 or so years, it will be real evidence that it is not required.
Lord Keen of Elie
I note what the noble Lord says and welcome the suggestion that we speak to the Northern Ireland Office to see what its experience has been over the past 16 years and take that into account. However, at this stage, without further elaboration, and appreciating that the Committee understands the issue of principle that we are concerned with, I invite the noble Lord to withdraw the amendment.
Investigatory Powers Bill
Lord Carlile of Berriew Excerpts(7 years, 10 months ago)
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Lord Strasburger (LD)
My Lords, I will speak briefly to Amendment 14. We have already heard at length that, in its report on the Bill, the ISC called for a “backbone” of privacy to be inserted into it. The Home Office’s initial response was to add one word to the next version of the Bill: it inserted “privacy” into the title of Part 1 so that “General protections” became “General privacy protections”—nothing else changed. Later, under some pressure in the Commons, Clause 2 came into being, which goes some way, but not all the way, to inserting the privacy protections that we on this side of the Committee feel are needed.
This episode suggests to me that no one in the Government has a brief to speak up for privacy and civil liberties when legislation is being formulated. Presumably, that is why the Home Secretary included Section 46 in the Counter-Terrorism and Security Act 2015, giving her the power to establish the Privacy and Civil Liberties Board. The only problem is that she has not commenced this power and the vacuum in privacy protection advocacy in government is still there.
Amendment 14 would force the Home Secretary’s hand so that she must get on with it—actually, to be more precise, her successor must get on with it because she probably has bigger fish to fry as of Wednesday. For now, this is simply a probing amendment. If it were brought back on Report, it would probably need some improvement in terms of the board’s scope and powers. The American version of this, the Privacy and Civil Liberties Oversight Board, has been very successful with a much wider brief. For now, I will be content to hear the Government’s response to the amendment as it stands.
Before I sit down, I will say a couple of words regarding the friendly fire that has been coming from behind me during this debate—rather ungraciously, I might say—from the noble Lord, Lord Carlile. He queried whether I had read Nineteen Eighty-Four and knew about its description of CCTV in every bedroom. I have, actually, but I suspect that he has not been doing his reading on security matters because, if he had, he would know about Project Optic Nerve, in which GCHQ intercepted 1 million Yahoo! users’ webcams, which effectively put state cameras into 1 million bedrooms.
Lord Carlile of Berriew (LD)
My Lords, I am not going to enter into an argument with my noble friend about the activities of GCHQ, particularly when they have been misdescribed so fully, but I will say one or two things about the merits of the amendments before us, particularly Amendment 6.
I agree with what my noble friend Lord Lester of Herne Hill said about this group of amendments, including Amendment 6, for the reasons he gave. It would be helpful if the noble and learned Lord, Lord Keen, could explain to the Committee the difference between Amendment 6 and the intention of the Government as set out in Clause 2(2)(a). If the intention of the Government is to do what my noble friend Lord Lester described, I respectfully suggest that the adoption of the wording in Amendment 6 would be more useful and more certain and, above all, as my noble friend said, would avoid unnecessary disputes about the meaning of and compliance with Article 8 in the courts.
Unfortunately, I disagree again with my noble friends about Amendment 14. I am not against a Privacy and Civil Liberties Board if the Government wish to create one. Indeed, I would rather support the creation of a board which had an overarching view of privacy and civil liberties. The board that was created in the 2015 Act is most certainly not a Privacy and Civil Liberties Board. It is a board that was intended to have some kind of oversight of interception, surveillance and other matters, and was a construct agreed as a compromise because of the nature of government at that time. I am afraid it is a glass half-full. Therefore, I urge the Government not to adopt that Privacy and Civil Liberties Board.
It is also worth saying that we have come an awfully long way in the protection of the public against unlawful intrusion by the state into their private affairs since the enactment of the Privacy and Civil Liberties Board provision, which has not been brought into force. The safeguards included in this Bill as a result of the work of my successor as independent reviewer, David Anderson, and of the Intelligence and Security Committee and the RUSI panel mean that we have a much fuller raft of protections in the Bill. In my view, they are far more beneficial and provide a great deal more than was ever going to be provided by this form of the Privacy and Civil Liberties Board. I respectfully suggest to Ministers that this amendment is entirely unnecessary.
However, I emphasise that there are genuine concerns about potential breaches of privacy and civil liberties. They are concerns about what the public sector can do and they should also be concerns about what the private sector already does. Any of us who subscribe to online groceries, books, music or other similar consumer opportunities on the internet, as I confess I do—I frequently stream music in my car from my mobile phone—probably do not realise how much we have allowed our privacy to be trespassed upon by the so-called privacy policies of large internet service providers. If we are to have a Privacy and Civil Liberties Board, let us do the whole job, not just a bit of it.
Lord Rooker (Lab)
My Lords, I will follow up the noble Lord’s point about what the public sign up to in the private sector—of course, the private sector has lobbied against part of the Bill because it has a vested commercial interest. If you sign up to PayPal, you have signed up to 36,275 words of terms and conditions. Who reads them? “Hamlet” is 30,066 words. If you sign up to Apple iTunes, you are signing up to 19,972 words of conditions; longer than “Macbeth” at 18,110 words. It goes on: Facebook’s has 11,195 words. You tick the box—that is all you do—and give these companies access to your information. These companies would never have been able to start in other societies without the rule of law—we all know that. They can only operate in open, democratic societies. You sign away all kinds of things. We know there was a test at one time when someone changed the terms and conditions to an agreement to give away their firstborn and people ticked the boxes, because they did not read them.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining the purpose of this group of amendments. I am particularly glad that Amendment 5 gives us the opportunity to look carefully at the intention of subsection (1) in the privacy clause. Perhaps I could just clarify.
Clause 2(1) lists in some detail the functions that a public authority may discharge under the Bill that may result in an interference with an individual’s privacy or impose an obligation on a telecommunications operator. The clause as drafted makes clear that, when taking such a decision, a public authority—including the Secretary of State and the judicial commissioner—must have regard to the principles set out at Clause 2(2).
The effect of the clause is perhaps not far removed from the intention of the amendment, but I would argue that the current drafting has the benefit of providing clarity. I was grateful for the complimentary remarks about the clarity of the drafting of the Bill overall that the noble Baroness was kind enough to make. The drafting of this part of the clause makes clear that the privacy clause bites in every situation in which a public authority takes a decision or action to which privacy considerations are relevant. I hope that those comments will encourage the noble Baroness to withdraw the amendment.
I am sympathetic to the spirit behind Amendments 6 and 8, which seek to prohibit the authorisation of powers in the Bill if less intrusive means are available. I hope I can provide some comfort to the noble Baroness and the noble Lord, Lord Carlile, by directing them towards the statutory codes of practice which we have published in draft alongside the Bill for the Committee to consider. For example, paragraph 4.7 of the draft interception code of practice states:
“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.
The codes will be submitted to Parliament for approval, and a failure to abide by them will be considered a breach by the Investigatory Powers Commissioner. I hope that that reassurance provides enough ammunition for the noble Baroness to withdraw her amendment.
Lord Carlile of Berriew
I do not want to prolong the debate, but does the Minister not think that it might be preferable to put these words in the Bill rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty.
Earl Howe
I am grateful to the noble Lord for seeding that thought in my mind and I am glad to take it away and consider it between now and Report.
Amendment 7 also relates to Clause 2, which provides a statutory requirement that public authorities must consider all three of the privacy duties listed in subsection (2). It is not an exclusive list—there are other important principles that public authorities will have regard to—but it does make clear the principles that sit at the heart of this Bill and that underpin the exercise of functions under the Bill. And it is of course the case that the judicial commissioner will look to see whether these principles have been satisfied—when, for example, he or she reviews a Secretary of State’s decision to issue a warrant.
The noble Baroness expressed some concern about the phrase “have regard to”. In bringing forward the privacy clause, the Government responded to concerns raised by the Intelligence and Security Committee of Parliament as well as by the Opposition and the Scottish National Party in the other place. The language of “have regard to” is drawn from amendments tabled by the Opposition and the SNP in Committee. It reflects the language of Clause 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which was held up by those parties in Committee as an exemplar of how such a clause might operate. That is the basis on which we have included that particular form of words. In short, while I am sympathetic to the concern raised in this area—
Counter-Daesh: Quarterly Update
Lord Carlile of Berriew Excerpts(7 years, 11 months ago)
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Lord Carlile of Berriew (LD)
My Lords, would the noble Earl add to his plaudits those non-military government officials who have been working in parallel with the military? In particular, in relation to Prevent, which he has just mentioned, would he confirm for example that RICU, the Research Information and Communications Unit of the Home Office, has taken down many thousands of violent Islamist and other extremist sites? Would he also confirm that the balance of the propaganda battle is now against Daesh and in favour of our authorities?
Earl Howe
I agree completely with the noble Lord, Lord Carlile. Since December 2013, 101,000 pieces of unlawful terrorist material have been taken down from the internet. That brings the overall total to 120,000 since February 2010, when the police Counter Terrorism Internet Referral Unit was set up. The unit makes 100 referrals a day related to Syria.
National Security Strategy and Strategic Defence and Security Review 2015
Lord Carlile of Berriew Excerpts(8 years, 5 months ago)
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Earl Howe
The implication behind my noble friend’s question is that it is the actions of the West that have caused the migration crisis and the suffering in Syria. I respectfully disagree with him on that. It is Mr Assad himself who is the prime cause of the suffering in his country and the migration crisis. It is Mr Assad who has created the vacuum that ISIL has, unfortunately, filled very capably.
As regards the Motion that may come to the House of Commons on Syria, I have not seen a draft of it, but the discussions in government involve a Motion which would focus on ISIL. It is very clear that the House of Commons two years ago rejected the proposal that we should be involved in a war against Mr Assad. I think the UN Security Council resolution also points us towards a very clear and focused campaign to eradicate ISIL, which is a clear and present danger not just to us but to many countries around the world.
Earl Howe
I think we must all be mindful of that precept. I hope we have been mindful of it in this document. It sets out what we see as the tier-one risks over the next five years. Clearly, were there to be such a major change in this country’s place in Europe or, indeed, such a major change in what this country consists of, there would be an obvious need to look again at some of the planning encapsulated here. However, I put it to the noble Lord that neither of the events that he has postulated invalidates the key strands of thinking in the SDSR set out here.
Terrorism is going to remain the most direct and immediate threat to our domestic security and overseas interests. Cyber threats to the UK are significant whether we are in or out of the EU. The risk of international military conflict is growing. Although it is unlikely there will be a direct military threat to the UK itself, there is a greater possibility, I put it to him, of international military crises that may draw us in. There is instability overseas. Since 2010, that has spread significantly to the south and the Middle East and northern Africa, as the noble Lord knows. The public health threats and the major natural hazards that the report identifies will still be there regardless. Therefore, I hope that the House will agree that we have looked in the round here not at a crystal ball but at an analysis of the threats that face us, analysing in turn what resources we need to address those threats.
Lord Carlile of Berriew
My Lords, I support the counterterrorism strategy contained in the document but can the Minister confirm that the document takes into account the events of Friday 13 November? Can the Minister also confirm that the strategy will include extensive sharing of intelligence techniques and information, subject, of course, to national security considerations so that, when attacks are threatened from abroad, there is the greatest possible chance of their being detected before they occur?
Earl Howe
I can give the noble Lord that assurance. We wish to see maximum collaboration with our friends and allies on the intelligence front. In the wake of the Paris attack, the question that we have asked ourselves is obvious: what are the capabilities that we need to counter such an event? We need the means to protect our transport systems, borders, critical national infrastructure and crowded places. We need systems that give us data in advance about people intending to come to this country so that they can be checked against our records. We need emergency services to respond to such incidents were they, God forbid, to occur. We need Armed Forces who are ready to provide support at very short notice in the event of a terrorist attack. Those are the questions we have asked ourselves over the past few months. The answers are contained in the report and I hope they will be reassuring to the House.