Investigatory Powers

Baroness Neville-Jones Excerpts

Wednesday 8th July 2015 Lords Chamber

[Baroness Neville-Jones (Con)]

My Lords, the Anderson report is a landmark in the national discussion on this important issue. It is written with the most extraordinary clarity. There would be very few people in this House who did not learn something from this report. It supports the substance of the Government’s role in maintaining the security of this country and its population, while at the same time making recommendations that, if implemented, will alter the current legislative framework and procedures in important ways. It raises many issues and asks many questions, some of which it answers while others remain unresolved. I suggest that what we have in front of us is the beginning of the process rather than the end.

There is one area in which the ground for the Government is very firm. As the noble Baroness, Lady Manningham-Buller, said, the report accepts—takes for granted in a sense—the need for and legitimacy of bulk collection of communications data, subject to calling for important new safeguards. I will come to those in a minute. Those who argue that that should be outlawed have not provided an answer to the crucial question of how initial leads can be generated to form the basis of more targeted subsequent investigation. Indeed, I would argue that the power to collect data in bulk is becoming more, not less, important as people engaged in criminal activity—I include terrorism in this—move towards the use of different media and the dark web, as mentioned by my noble friend Lord King.

Legislation needs to cover all types of data. It is not clear to me that Anderson is absolutely explicit on that point. The growing use of encryption is a major challenge, telling us something else important, which my noble friend Lord King also mentioned. Security and law enforcement agencies must remain technically capable as well as legally empowered to protect the public.

If the Government could carry out their protective functions without the support of the public, without resort to the co-operation of communications providers, and without the help of the security industry, on whose technical capabilities they increasingly depend as in-house government R&D withers, it could perhaps struggle on broadly within the existing legal and procedural framework. However, I do not think that would be politically wise or provide the basis for the external technical and political support on which the Government are increasingly dependent in carrying out their security functions.

The debate in the other place focused on two issues: the generally accepted need for public trust and, within that, the legitimate authority for issuing warrants—on which opinion was divided, as I see it is in this House. I wish to explore some of the implications of these issues, rather than spending time on rehearsing arguments so well expressed elsewhere about the threat we face—which is very great and growing—and our need to respond to it. Suffice it to say that public trust is essential and much more likely to be retained by greater openness and additional safeguards on the powers needed by the Government. I agree with the way Anderson moves the debate on that issue, and therefore I do not think the Government can hang on to the status quo—not that I think they are minded so to do. The present uncertainties about the factual position—this is where Anderson is partial—and about the straightforwardness of some procedures employed by the security and law enforcement agencies have bred a certain miasma of suspicion, which will not go away without a certain degree of change. I hope that the Government recognise that; I think they do.

This matter, and the suspicions that have been generated, bear on the issue of warranting. However, before I come to that, I want to mention some issues which so far have been less aired in this debate. There are broadly two ways in which intrusive powers can be exercised by the Government: either with service providers’ co-operation or on a non-collaborative basis, with probed access to the network and increased surveillance. It is clear that, to be fully effective in providing protection, the Government need access to both routes. At the moment, they increasingly have to rely on the non-collaborative route in the absence of sufficient assistance from service providers, which, if they chose to offer it, could provide vital help with such matters as encryption and transnational services. In referring to service providers, I include also the new media operators.

The problem is that in the absence of judicially authorised warrants, service providers’ current reluctance to collaborate with the Government is likely only to increase. The protection that the Government are able to afford the public, even with the help of the security industry, is therefore likely to diminish. This is a real rub. One could argue perfectly legitimately—as Members of this House have—that the warranting function is essentially political. One could equally argue that it is ultimately judicial. In fact, I think it is a mixed competence. We have to consider the practical implications of our position. We cannot ignore that the way in which these decisions are taken, whether judicial or political, will be neutral when it comes to the assistance that the Government need from outside sources. That includes foreign Governments.

I therefore incline towards the notion that we will have to have a very strong judicial element in the warranting system. I also reckon that we will need mutual legal assistance agreements; I do not see how else we are to get help with these issues from organisations that lie beyond our territorial jurisdiction. Those agreements will be difficult to negotiate in the absence of a judicial element in warranting.

I do not want to dwell on this, but if the Government decide to accept the recommendation of setting up a new body, to which David Anderson has given the acronym ISIC, it would be right to give it the status, resources and trained staff that would enable it to provide both a first-class service to the Government 24/7—that will be necessary if we go down that route—and confidence to the public. It would be an error to provide a grudging, underpowered ISIC.

The other element in this game is that the Government are increasingly dependent on outside players to carry out their functions and to protect the nation. The active and willing participation of the security industry is also essential in maintaining government capability against a threat that, as I said earlier, is constantly increasing and throwing up technical challenges. We have to understand, for reputational and other reasons, that the security industry also needs a clear and accepted legal framework to work in. The issue is not quite the same as dealing with foreign Governments, but the industry is keenly interested in the reputational angle of the relationship that it must have with government. We need a relationship with the security industry that addresses the need for capability gaps to be filled now and in future. There is an issue of how we devise legislation that allows us to keep pace with technology while ensuring public trust in how those capabilities are used.

The Anderson report contains some not entirely justified strong language about the failure of government to make the case for the retention of third-party data. I do not quite share his indignation on this subject. I do not read this stricture, as some commentators seem to have done, as meaning that no case can be made. I take the view that no adequate case has yet been made, although it should be before legislation is embarked on. I agree in the sense that we need a national consultative process. We need to talk to each other more about this. We need to get to the bottom of our differences and to discuss all the angles. The sooner we do so the better. As my noble friend Lord King rightly remarked, there is, for obvious reasons, no time to lose; I do not need to labour that point.

The Government should not be frightened of leading such a national consultation and debate. The public are not foolish about the danger that we face. They know that powers are needed by government to provide security. They emphatically do not want to know about technique, and they do not want others who should not know about technique to know about it. But they do want to be able to understand where the limits to those powers that will be exercised will lie, and to be confident that the disciplines are in place to keep the system honest.