Operation Midland Independent Report

David Davis Excerpts

Monday 7th October 2019 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

(Urgent Question): May I add my commendation to the Trade Minister who responded to the previous urgent question, who did so as to the manner born?

To ask the Minister for Crime, Policing and the Fire Service if he will make a statement on the Home Office’s response to Sir Richard Henriques’s independent report on the Metropolitan police’s Operation Midland.

[The Minister for Crime, Policing and the Fire Service (Kit Malthouse)]

This is a deeply concerning case. Operation Midland was the Metropolitan Police Service’s investigation into allegations of child sexual abuse made by Carl Beech against a range of public figures. Beech is now serving an 18-year prison sentence for perverting the course of justice. He has appealed his conviction and sentence, as you mentioned, Mr Speaker, and they are a matter for the courts to consider. This case has had a devastating impact on those he accused and their families. Sir Richard Henriques’s report on how the Met handled the investigation raises many concerns. The Met has already apologised for failings in the investigation and acted on many of Sir Richard’s recommendations, and we very much welcome the publication by the Met on Friday of the fuller detail of what Sir Richard found. I note that the commissioner of the metropolis has issued a further statement and apology today.

It is now vital that the public receive independent assurance that the Met has learned from the lessons identified in Sir Richard’s report and has made the necessary improvements. That is crucial to restoring public confidence that police handling of an investigation of such sensitive matters is both fair and impartial. That is why my right hon. Friend the Home Secretary wrote last week to Her Majesty’s chief inspector of constabulary and fire and rescue services to ask him to undertake an inspection at the earliest opportunity to follow up on Sir Richard’s review. It must be right that a body independent of Government take this work forward. She also asked that the inspection take account of the findings of the report of the Independent Office for Police Conduct, which was published this morning, and which we will be considering carefully.

The public must have faith in the impartiality of their police service, and no one should have to suffer the ignominy of public false accusations of the most heinous kind. The Government are determined to ensure that the lessons are learned by the police and that the failings of this investigation are never repeated.

[Mr Davis]

The fundamental principle of our justice system is innocent until proven guilty—a principle undermined over the past decade when the rules of police forces were amended, particularly after the Jimmy Savile scandal. The entirely understandable aim of those changes was to increase the conviction rate for sexual offences, but that has been a complete failure, with conviction rates for sex crimes having dropped dramatically in the last five years.

The price that has been paid in terms of reputational damage and ruined lives has been enormous. High-profile figures investigated under Operation Midland have had their reputations disgracefully and unjustly tarnished. The IOPC, whose report was published this morning, has failed miserably to identify the Met’s failures, identify the culpable people or resolve the issues.

However, it is not just the Met. Other police forces across the country follow policy guidelines, automatically believing all allegations brought by complainants, and therefore disbelieving the defendants. This has damaged the reputations of Cliff Richard, Paul Gambaccini, Jim Davidson, my hon. Friend the Member for Ribble Valley (Mr Evans) and many other, less well-known defendants. Will HMIC therefore review not just Operation Midland, but the judicial and policing rules and procedures covering all such cases, so that we get justice for victims and protection for the innocent?

[Kit Malthouse]

My right hon. Friend raises issues that are, of course, important. He rightly points out the devastating impact, as I mentioned earlier, that this episode has had on many significant public figures, one of whom was a much decorated war hero. I hope he will recognise that, in many circumstances, the police face a difficult task in trying to balance the need to give victims of crime the confidence to come forward, engage with them and report crimes, against the requirement to have justice or impartiality in an investigation at the same time.

The College of Policing, which looked at the guidelines, considered, for example, the tendency or policy that had been adopted for victims always to be believed. We have clarified the guidance that is available to police officers in those circumstances, such that, while a victim’s allegations must be heard with integrity and properly recorded once an investigation has begun, that must be done with impartiality. We hope and believe that the audit or inspection by Her Majesty’s inspector will look specifically at whether the Met has learned the lessons of this particular episode.

Police Surveillance of Journalists

David Davis Excerpts

Wednesday 17th July 2019 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con) (Urgent Question)]

To ask the Secretary of State for the Home Department to make a statement on the Home Office’s policy on police surveillance of journalists.

[The Minister for Policing and the Fire Service (Mr Nick Hurd)]

It cannot be said often enough that the Government are committed to protecting the free press and freedom of expression in this country. The Government agree—indeed, they forcefully advocate—that confidential journalistic material and journalists’ interaction with their sources must be protected. However, that does not mean that journalists should receive blanket protection from legitimate investigation simply because of their chosen profession. Our security and intelligence and law enforcement agencies will, in very limited circumstances, have a legitimate need to investigate a journalist or that journalist’s source, but there need to be protections in that regard.

We believe that the Investigatory Powers Act 2016 provides strong protections in relation to the use of investigatory powers for the purpose of identifying or confirming a journalistic source and for the obtaining of confidential journalistic information. This ensures that protections are applied where they are required and that those who commit a crime or pose a threat to national security can be investigated regardless of their chosen profession, and it does so in a way that is compatible with all our ECHR obligations.

For example, where a targeted communications data authorisation under part 3 of the Act is made with the purpose of identifying or confirming a source of journalistic information, section 77 of the Act requires that, other than in threat-to-life situations, the authorisation must be approved by a judicial commissioner before it can take effect. In deciding whether to approve such an authorisation the judicial commissioner must have regard to the public interest in protecting the sources of journalistic information and the need for there to be another overriding public interest before a relevant public authority seeks to identify a source.

The codes of practice under the Act provide detailed and extensive guidance to public authorities when applying the powers in the Act, including extensive guidance on when those safeguards should be applied.

[Mr Davis]

One of the worst things a Government can do to damage democracy is to undermine the freedom of the press. In the past week, there have been numerous press reports of the police using

“the full force of the state”

to pin down the source of the recent leak of diplomatic telegrams. According to the reports this includes analysing mobile phone data in journalists’ phones, including location data showing everywhere they had been in the previous weeks. If true, this would be an astonishing intrusion on press freedom, because it puts at risk every confidential source they have, not just the one the police might be looking for.

Since the successful court case brought by the hon. Member for West Bromwich East (Tom Watson) and myself against the Government, the Data Retention and Investigatory Powers Act 2014 has been tightened up. Journalists get particular protection under it, and there are only two ways such intrusive surveillance could be legally carried out. One is for the police to have obtained a warrant on national security grounds, in effect. Given the fact that the Government did not even use the DA, or defence advisory notice, procedure to stop publication of the telegram—they did not even use the procedure available to them—it is very unlikely that such a warrant would have been granted or such an agreement have been given by a commissioner. The other way is for one of the state agencies—the secret agencies—to have obtained the data. Given that the leak was embarrassing, but not a threat to national security, this also seems unlikely.

So can the Minister reassure the House that these intrusive surveillance techniques were not used against journalists in this case and that they would never be used unless there was either a serious crime or a real and serious threat to national security?

[Mr Hurd]

My right hon. Friend is a long-standing champion of civil liberties and press freedom; in fact, there is probably no greater one in this House, and I am grateful to him for the UQ and the opportunity to place on record again—because, as I said, this cannot be said often enough—the Government’s absolute commitment to protect the freedom of the press. That is a cornerstone of our democratic processes, and he has heard that from the Prime Minister, the two men who want to be the next Prime Minister, the Home Secretary and anyone else at a microphone; that is entirely sincere.

My right hon. Friend is also quite right to point out that the Investigatory Powers Act has been subject to a tightening-up process, in large part stimulated by the promptings of himself and colleagues. The point I was trying to stress in my remarks is that we do believe—although this is being challenged and will continue to be challenged by people who take a different view—that the safeguards and protections in place and what our security, intelligence and law enforcement agencies are required to go through in terms of, for example, seeking a targeted communications data authorisation are extremely stringent.

As my right hon. Friend said, authorisations in this case need to be approved by a judicial commissioner. A Government of any colour need to be subject to scrutiny and challenge on the robustness of these approaches. I am not going to comment on the specific case; I am here simply to set out the process in relation to the protections that my right hon. Friend and others quite rightly seek to be reassured by, and I hope that I have done so.

Oral Answers to Questions

David Davis Excerpts

Monday 10th June 2019 Commons Chamber

[Caroline Nokes]

I thank the right hon. Lady for her question. It is absolutely because we acknowledge that people have been wronged that, in the last week, I personally have attended two separate outreach events for people who wish to understand the compensation scheme. It is why there are dedicated helplines. It is why we have put in place the scheme with Citizens Advice, so that it can provide advice. I reiterate that 6,470 individuals have been granted some form of documentation and 4,281 have been granted citizenship. As I said, there are 13 different heads of claim, including not only deportation, but loss of ability to work, loss of benefits and so on. We are absolutely determined to make sure that we compensate the individuals affected in a timely manner.

[Mr David Davis (Haltemprice and Howden) (Con)]

3. What assessment has been made of the accuracy of the facial recognition technology used by the Metropolitan Police Service.

[The Minister for Policing and the Fire Service (Mr Nick Hurd)]

Facial recognition technology can help the police to do their job. It must be right to support trials of this rapidly improving technology, but given its sensitivity it must also be right that the technology’s benefits should be independently reviewed. That is exactly what the Met is doing with the University of Essex and we will consider that review very carefully.

[Mr Davis]

In May, San Francisco, one of the most tech-friendly cities in the world, banned the use of live facial recognition technology because of massive error rates and concerns about racial bias in its use. Five United Kingdom police forces use similar cameras and systems. Both the Met and South Wales police have seen a 90%— or worse—misidentification rate of innocent members of the public. It is clear that the cameras carry serious risks, yet no legislation governs the use of the technology; it operates in a legal void. The Minister refers to the Metropolitan police. This is not a decision for a police force to make; it is a decision for Parliament. Will the Minister bring legislation to the House laying down strict guidelines on the use of this technology?

[Mr Hurd]

My right hon. Friend has a long track record in this area. He is entirely right to raise the sensitivity in finding the right balance between security and civil liberties. On the Met’s numbers, there is a one in 1,000 chance of a false alert, but we need to see the evaluation. I am very clear in my mind that we need to support the police in trialling new technology, but if we are to take the public with us we have to be absolutely sure that it sits inside a regulatory framework that they trust. We believe that there is a legal framework for it, although that is being challenged in the courts. I give him my undertaking that, given the importance of maintaining public confidence and trust, we are doing urgent work to review the regulatory environment in which this technology development sits, including new oversight and advisory boards, because I recognise the fundamental importance of taking the public with us on this journey.

Rwandan Genocide: Alleged Perpetrators

David Davis Excerpts

Tuesday 9th April 2019 Commons Chamber

[Mr Wallace]

I can give the hon. Gentleman that reassurance. At the beginning of this year, I got an update from the counter-terrorism police about the conduct of any investigations relating to people from Rwanda. In fact, I briefed my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) on that at about the same time to make sure he realised we are not forgetting this. We are not going to forget the genocide, and nor are we going to forget bringing those people to justice. I am very happy to keep the House posted, as we are allowed to. Nevertheless, with respect, we have to remember that this is a live police investigation and therefore all the safeguards apply.

[Mr David Davis (Haltemprice and Howden) (Con)]

Other countries with very strong records of protecting asylum and the rights of individuals under criminal investigation, such as Canada, Norway, Denmark, Sweden and the Netherlands, have seen fit to extradite suspects back to Rwanda. Why have we not?

[Mr Wallace]

If my right hon. Friend has a problem with the judiciary, I suggest he takes that up with the Lord Chief Justice. We have to respect the ruling of the High Court, which took the view in July 2017 that these people would not face a fair trial if extradited. We fought the case, we took it to the Court, the Court decided otherwise, and we have to respect that ruling.

Oral Answers to Questions

David Davis Excerpts

Monday 1st April 2019 Commons Chamber

[Sajid Javid]

If we leave the EU with no deal, of course there will be a change to the tools we use with our European friends. For over two years now, but especially in the last six months, we have been working with them both bilaterally and using other tools, such as Interpol and the Council of Europe, which together will still keep us safe.

[Mr David Davis (Haltemprice and Howden) (Con)]

Extremist views take root more easily when the communities involved feel beleaguered or at odds with the rest of society—that is one reason I disagree with the Home Secretary on the Shamima Begum case. Has the Home Office researched the attitudes of the various communities in Britain to its own counter-terrorism policy, both legislative and operational?

[Sajid Javid]

My right hon. Friend raises an important issue. It is very important that the Home Office, in all its counter-extremism and counter-terrorism work, continues to engage with communities at all times and in various ways—I have met many community leaders; we have had recent roundtables with members of the Jewish community on antisemitism and with members of our Muslim community on anti-Muslim hate crime; and I have attended Prevent boards and panels to see the work they do—but we are always looking at what more we can do, because having the confidence of all these communities is essential.

Oral Answers to Questions

David Davis Excerpts

Monday 25th February 2019 Commons Chamber

[Mr Speaker]

I am keen to encourage a new young Member. I call Mr David Davis.

[Mr David Davis (Haltemprice and Howden) (Con)]

The Home Secretary quite rightly says that he cannot comment on the individual case of Shamima Begum. However, it does raise a more general issue. In that case, citizenship was removed after the birth of the latest child who therefore presumably has a right to British citizenship herself. What, if anything, are the responsibilities of the British state to that child in this event?

[Sajid Javid]

Again, my right hon. Friend will know that I cannot talk about a particular case, and that any children born in that conflict zone deserve our utmost sympathy. He will also know that when it comes to Syria, FCO travel advice has been very clear for a number of years: we have no consular presence, so we cannot provide any consular assistance at all. Should a child reach a location outside Syria, where we do have a consular presence, then it would be possible to provide support with the consent of parents.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

David Davis Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons & Ways and Means resolution: House of Commons
Monday 28th January 2019 Commons Chamber

[Sajid Javid]

I very much agree with how my hon. Friend describes the issue. This is about putting the UK in control of who comes to the UK, so we can be certain that that will benefit our economy and society.

[Mr David Davis (Haltemprice and Howden) (Con)]

The Home Secretary makes a good case for the importance of a firm but fair immigration policy, but does he accept that when we implement such a policy, it also has to be civilised? With that in mind, does he intend to do anything about the national shame of the 10,000 migrants in holding centres in this country?

[Sajid Javid]

I assume that my right hon. Friend is referring to detention centres. He will know that detention policy is not covered by the Bill, but he asks an important question and I want to make sure that I answer it. Our policy makes it absolutely clear that detention should be a last resort in respect of immigration control. Some 95% of individuals who are subject to removal are managed in the community—I know that my right hon. Friend would approve of that—and if anyone is detained, it is absolutely a requirement that we must be certain that there is a reasonable prospect that they can be removed in a reasonable time. Despite those protections, I have also tried to make sure that we are doing all that we can, which is why I welcome the work that has been done independently through the Shaw reports. We are trying at all times to see what more we can do further to improve the policy.

Investigatory Powers Bill

David Davis Excerpts

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Keir Starmer]

I am grateful to the Minister for clarifying the position, because that is an important additional measure in relation to bulk powers. We will, of course, support whatever amendments are necessary to achieve that end.

As I have said, the bulk powers are very wide. They will inevitably have an impact on people who are not suspected of doing anything wrong, and they will inevitably have an impact—or, at least, it is impossible to ensure that they will not—on legally privileged material, or material that involves journalistic material or journalistic sources, or, indeed, MPs’ correspondence. It would be good if a way could be found of excluding such material from the operation of bulk powers, but it is not possible to do so, and that is why there is concern about bulk powers. [Interruption.] I will give way to the right hon. Member for Haltemprice and Howden (Mr Davis) in a moment.

Bulk powers involve ordinary members of the public who have never done anything wrong, and they involve the potential to capture legally privileged material, journalistic material and MPs’ correspondence. I shall come on to the safeguards, but it is important to understand first why there is that concern about the bulk powers.

[Mr David Davis (Haltemprice and Howden) (Con)]

rose—

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. I know that the right hon. Member for Haltemprice and Howden (David Davis) is very good at whistling, but I am sure that shadow Ministers do not respond to whistles, and that the hon. and learned Member for Holborn and St Pancras (Keir Starmer) wanted to give way to him anyway.

[Mr Davis]

I was not intending to be discourteous, Mr Deputy Speaker.

The hon. and learned Gentleman said that it was not possible to screen out the correspondence of the various privileged groups he described. The issue arose at the Investigatory Powers Tribunal in respect of one of the Wilson doctrine cases, and that was the assertion made by the Government barrister at the time. However, I consulted a number of experts, including Ross Anderson at Cambridge, and they said that it was perfectly possible. A great deal of screening is already done to take out dross—issues such as pornography—and it is perfectly possible to screen out targeted groups as well.

[Keir Starmer]

Obviously, I should be very interested to hear how that could be done at the outset, and I am sure that the Minister would as well.

Let me make two points to emphasise why there is such concern about bulk powers. It may well be possible, depending on the parameters that are set, to reduce the likelihood of obtaining through bulk powers material that is sensitive in one shape or form, but I do not think it is possible to eliminate it. It may well be that most of that is done at the filtering stage, rather than at the stage of the initial exercise of the bulk power. I am not seeking to explain why bulk powers inevitably capture such information, or to justify that; I am simply explaining why I think so many people are concerned about the bulk powers. That is why Labour has made it clear that, given the breadth of the powers, the operational case for them must be properly made and properly reviewed, and that is why the safeguards must be reviewed.

The issue of the safeguards may need to be revisited when the Bill is in the other place. As the right hon. Member for Haltemprice and Howden knows, the Tom Watson and David Davis case is currently midway between the Court of Justice of the European Union and the Court of Appeal. Although it touches on existing legislation and retention powers, it may have implications in relation to the Bill when it is given further consideration, and will certainly be important when it comes to consideration of safeguards. Let me also, in passing, echo the concern expressed by the right hon. and learned Member for Beaconsfield (Mr Grieve) in relation to operational purposes, an issue which also arose in Committee.

As for the review, the first stage is to ask whether the operational case has been made. I referred yesterday to an exchange of letters between the Minister and me. I hope that copies of the letters have been made available; I think that they have been made available to the House, and that every Member has them. However, I want to put on record what was being asked for, and what the response was. Let me say at the outset that this was a constructive exchange, which moved a significant issue significantly further forward.

I wrote to the Minister that the review to be carried out by David Anderson should be

“supported by a security cleared barrister, a technical expert and a person with experience of covert investigations”,

that it should

“Examine the operational case for the bulk powers in the Bill, not merely in respect of the utility of the powers, but also their necessity”,

that it should

“Have access to all necessary information as is needed to undertake the review effectively, including all information provided to the Intelligence and Security Committee”,

and that it should

“Take about three months to complete and…report to the Prime Minister in time for the findings to inform Lords Committee considerations of Parts 6 and 7 of the Bill.”

The Minister’s reply is important, as Members who have had an opportunity to read it will appreciate. He wrote:

“I can confirm that the basic framework for the review will be as set out in your letter…David Anderson has hand-picked this team and we are confident that together they have the range and depth of knowledge needed to undertake a comprehensive review.”

I was very anxious that David Anderson should pick as members of his team people whom he considered to have the necessary competences to help him with the review that he has been asked to carry out independently, and I am pleased that he has done so. I have been assured by him that he is very happy with his choices, and with the skills from which he will benefit as a result of that exercise.

The Minister’s letter continues:

“In relation to your second point”—

this is really important—

“it is absolutely the case that this review will be assessing the specific question of whether the bulk capabilities provided for in the Bill are necessary. The review team will critically appraise the need for bulk capabilities, which will include an assessment of whether the same result could have been achieved through alternative investigative methods.”

That goes to the heart of the issue. If that is the focus of the review, it will give comfort to the Labour team—and, no doubt, to members of the Scottish National party, notwithstanding their concerns—and to all our constituents as well.

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention. I have been asking for the review for some time and my preference was always that it should have been earlier and available to us now. In fairness, and in keeping with what I said yesterday about the exercise that we have been conducting, I recognise that it was a big ask of the Government at this stage, particularly in light of the pre-legislative scrutiny. I am always inclined to look on the positive side and the fact that there is a review, under the terms for which we asked, is important. Of course, when one looks back at anything, one can always make the argument that it should have been done earlier and, usually, differently. I accept that it would have been good if we had had the review by this stage, which is why I put forward my argument as I did before, but I emphasise just how significant this is and what a significant change of position it is for the Government. It is constructive and positive, for which we are grateful.

[Mr David Davis]

The powers mostly already exist and this is an avowal of existing powers, so in some sense the question of the hon. and learned Member for Edinburgh South West (Joanna Cherry) is different from what it would normally be. We have powers and may not change them as result of the delay, but there is an implication for how soon we review the whole package and how soon we come back and re-legislate. It has long seemed to me that this is a piece of legislation that lends itself to almost annual review, renewal and reform. The way to deal with the problem may be to ensure that we get a relatively rapid review and reform of the legislation in another part of this business.

[Keir Starmer]

There is a case for frequent review, but what form that would take is a matter for us to discuss during the debate on the next group of amendments. I take the point that, in many senses, most of the bulk powers are currently available and being used. As I said yesterday, however, that does not mean that we should not scrutinise them now through the passage of the Bill. This is the first time that Parliament has had the chance to examine and scrutinise the provisions, because they simply were not avowed. The change of position on the avowal of the powers over the past three or four years and the fact that they are in statute are quite extraordinary. It would be wrong to say that as they existed and were used under more general provisions in the past, we should not ask for the operational case to be made now and have that properly scrutinised. This is the right way of doing things, even though one might say that it should have been done five, 10 or 15 years ago when things were different.

Investigatory Powers Bill

David Davis Excerpts

Report: 1st sitting: House of Commons
Monday 6th June 2016 Commons Chamber

[Keir Starmer]

That intervention gives me the chance to say that by and large—there are some exceptions—the bulk powers are available and being exercised at the moment, under the existing arrangements. The Bill puts them on a statutory footing with proper safeguards. Not to do so would leave the situation as it is now; that is unsatisfactory because the powers are not clear and safeguards are not in place. That is an important reason why, in principle, we support the legislation. From my own perspective, having worked with the security and intelligence services on real cases, in real time, I also appreciate why some of the powers are needed and how they are used. We must never forget that important consideration.

We know that David Anderson QC will conduct the review. We have great faith in him, as I think do most Members of this House. It is important that the task he is performing is clear. We have argued that he should look not at the utility of the bulk powers but at their necessity, that he should be able to choose a suitably qualified security cleared panel himself to help him, that he must have access to all the material necessary to carry out the review effectively, including, of course, the material made available to the Intelligence and Security Committee, and that he must have time to carry out his review; we envisage that he will report in time for the consideration in Committee in the House of Lords of parts 6 and 7 of the Bill, which should be in about three months.

I am pleased to say that as those terms of reference are of considerable importance to Labour I have had the opportunity to discuss them with the Minister, and can tell the House that today we exchanged letters setting out that important framework for the review, namely that it should be a review of the necessity of the powers, that there should be properly cleared panel members chosen by David Anderson, that he should have access to all material and that there should be a report within three months. All those are very important for the conduct of the review.

[Mr David Davis (Haltemprice and Howden) (Con)]

The whole House is glad to hear that there has been constructive engagement on this matter, as it is incredibly important to get it right. Will the hon. and learned Gentleman ensure that those letters are put in the Library today so that the rest of the House is aware of what is going on, as this is fundamental to the Bill?

[Keir Starmer]

I take that point, although obviously one of the letters is not mine—

--- Later in debate ---

[Mr David Davis]

rose—

[Keir Starmer]

I am happy to give way again straight away.

[Mr Davis]

There were two reasons for concern. First, the House should seek certainty in the law, rather than any notion that the law would alter depending on the judge. The Minister is one of those who wants certainty in the law and less law-making by judges, so he should accept that point. Secondly, the Home Secretary reviews approximately 2,500 warrants a year—10 a day. The ability to do so is dependent to a very large extent on the data presented and the time available. The reason we wanted a reasons-based judgment was the feeling that an hour on any given warrant was simply not enough time. At this point, I do not know whether this provision will meet that requirement, but that is the test in my mind.

[Keir Starmer]

I am grateful for that intervention. The certainty point is really important. It is a point that Lord Judge made when he gave evidence to the Public Bill Committee. When I asked him about the reference to judicial review principles, he was concerned that that was not clear enough for the judges to know which particular test they were to apply. Now, with the new text in the manuscript amendment, it is crystal clear to the judges that they review the decision according to judicial review principles, but they must

“consider the matters referred in subsection (1)”—

necessity and proportionality—

“with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by the section”.

That is the privacy clause. The test for the judges is now crystal clear: look at necessity and proportionality, and review the Home Secretary’s decision with a sufficient degree of care to make sure that the judicial commissioner complies with the duties imposed by the general provision in relation to privacy. That deals with the certainty point.

As far as the reasons are concerned, I cannot improve much on my previous answer. What I think is envisaged is that there will be a number of judicial commissioners whose task will be to undertake this review, and to take such time as they need to look at the material and apply this test. They will not necessarily have the constraints that the Home Secretary and the Foreign Secretary have, but obviously a lot of this will happen in real time, so there will be the constraint of time in that sense. As I said, they will not be doing that alongside the other sorts of duties that a Secretary of State has to carry out during the course of a day.

I share the concerns that have been expressed on this matter, but I am clear in my mind that close scrutiny on judicial review principles is markedly different from Wednesbury unreasonableness and makes a real difference in real cases, so long as there is access to all the material, and clarity that the privacy provisions must be complied with. That effectively means that there are factors that it is mandatory for the judicial commissioner to take into account. That makes a material difference. That is why we will support the amendment.

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention, because it drives us back to the point of the privacy clause, which we debated in Committee and which has been debated elsewhere. It is important for three reasons. First, this is a statement of principle about the important interests and duties running through the Act, and it is important to have that statement in the Act. It avoids inconsistency and reminds decision makers of the importance of taking into account privacy, the integrity of data, human rights and so on in all cases, so this is a matter of principle.

The second reason why our new clause is important is that of practical considerations. I worked with the Police Service of Northern Ireland for five years in relation to its compliance with the Human Rights Act. Having structures and decision making written into everything it did helped it to reach better decisions, and I am sure it is the same for other police forces and for public authorities. Never underestimate the practical application that such a clause has in real time for people in public authorities trying to do their job. The third reason—I will come back to this in a minute—is that our new clause gives real teeth to the test that the judicial commissioners apply, because there would be a link between the privacy clause and the test.

[Mr David Davis]

I thank the hon. and learned Gentleman for his patience in giving way so many times. Frankly, I favour his version and the reason is this. It rather bounces off something he said earlier, when he was talking about the protection of trade unionists. Of course, he is right: historically, there have been cases, 20 years ago or so, of what one might call foolish interference in trade union actions by the agencies. Today, one of the problems is interference in what might be thought of as legitimate demonstrations, by environmental groups and so on, that have become public scandals. When he was talking about trade unionists, I was trying to think how we generalise that. It seems to me that his new clause is the right way to protect those engaged in legitimate democratic activity from improper intervention.

[Keir Starmer]

I am grateful for that intervention. It is the historic trade union cases that have caused so much concern, but our new clause is intended also as a future-proofing exercise to ensure that, whatever human right is at issue and whichever individual or organisation is involved, there is a provision that requires decision makers to take into account the convention rights involved.

--- Later in debate ---

[Mr Grieve]

I think my hon. Friend makes a good point. I have an underlying confidence that the amendment we are discussing might commend itself to those on the Government Front Bench. On that basis, I do not intend to labour this point any further. I felt it was important to set it out, however, because it marked a significant shift in the Committee’s approach to this legislation. I wanted the House to understand why that change had come about after we had been given the extra classified briefing and why we came to the conclusion that we should accept this principle, alongside essential safeguards.

[Mr David Davis]

I have not read the individual amendments, so I am flying blind here. However, there is no doubt that this power is the most intrusive power in the Government’s armoury. One of the problems historically has been that the sheer volume of work being conducted means that scrutiny and oversight can sometimes slip. Would my right hon. and learned Friend’s amendment actually require the investigation of every single bulk intervention?

[Mr Grieve]

The amendment would require that

“the Investigatory Powers Commissioner must, in particular, keep under review the operation of safeguards to protect privacy.”

In our view, it is crystal clear that such a provision would meet the needs that we have expressed. As I have said, the Committee has been satisfied that the rules relating to bulk interception are adequate to provide the necessary safeguards. So, as long as we apply identical standards to equipment interference, the Intelligence and Security Committee believes that this process could be made to operate properly.

--- Later in debate ---

[The Solicitor General]

I am extremely grateful to the Chairman of the Justice Committee, who speaks with knowledge and experience on such matters. He will be glad to know that Bar Council representatives, whom I recently met, have kindly undertaken to come up with further proposals by which the issues that took up so much time in Committee might be resolved. I will be meeting representatives of the Law Society this very week. It is perhaps a little unfortunate that those particular proposals were not crystallised prior to today’s debate, but there will of course be more time. If clear proposals come forward—I am sure that they will—they can be subject to full, proper scrutiny in the other place.

[Mr David Davis]

Bluntly, I ask my hon. and learned Friend to ensure that proposals come forward whether or not the Law Society comes up with any. The erosion of legal professional privilege without any recourse to this House is the single biggest erosion of liberty in this country over the past decade and a half. If the Bill is to meet its requirements, it is vital that such reforms are found.

--- Later in debate ---

[The Solicitor General]

My hon. Friend has tabled that amendment in the spirit of his speech on Second Reading, which referred to the role of the Speaker. I look forward to hearing any argument that he pursues on this matter. While I can see the merit in seeking to protect the privileges of parliamentarians through the office of the Speaker, my concern is that involving the Speaker in approving a particular warrantry process or not puts us at risk of confusing Executive action with the roles of this place and of the Speaker in terms of the legislature.

The Prime Minister will be accountable to hon. Members for any decision that he or she may take on warrantry through the normal process of questions, statements or being summoned to this House following an urgent question. The procedure in relation to any decision that the Speaker might make is more difficult—the mechanism might be a point of order. However, I am unsure whether that sort of challenge to the Chair would sit well with the role of the Speaker and the position of parliamentarians. There are difficulties in involving the Speaker.

[Mr David Davis]

Unfortunately, I am afraid that I can give my hon. and learned Friend evidence of his account of accountability not working. When the case of the hon. Member for Brighton, Pavilion (Caroline Lucas), who is a past, and no doubt future, leader of the Green party, went to the Investigatory Powers Tribunal, the Government lawyer’s stance was that it was not a legally binding constraint on the agencies. When I put that point to the Prime Minister, he was unable to answer. It is normally the case with the Wilson doctrine that the answer comes many years later, so an argument about accountability does not stand up here.

[The Solicitor General]

With respect to my right hon. Friend, I think it does, because we are putting in the Bill the Prime Minister’s role in approving the warrant; what we have for the first time is a very important statutory protection. Again, let us not forget the progress we have made in getting to the position we are in today. A few years ago, some of these conventions and operations were not even avowed, although that is not the case with the Wilson doctrine. Let us pause for a moment to remember what that doctrine is all about, which is making sure that hon. Members can carry out their public functions as office holders in a free and proper way, subject to the same laws as everybody else in this country—equality before the law applies to Members of this place as much as it does to other members of the public. I am sure that debate will be developed as we hear from speakers on this group.

On technical capability notices and national security notices, we have been very clear throughout this process that we will work closely with industry to ensure that the Bill provides the strongest protections to those who may be subject to obligations under this legislation. In Committee, we heard concerns that these notices were not subject to the same strict safeguards as the authorisations of warrants. We have listened to those concerns and responded with new clause 10, which applies the full double lock to the issue of notices under part 9 of the Bill. Following further engagement with industry, we have taken steps to address further concerns, and so amendment 86 will make it clear that national security notices cannot require companies to remove encryption; amendment 87 makes it clear that national security notices will not subject companies to conflicting obligations in law; and amendments 45, 70 to 73 and 122 make it clear that warrants must be served in an appropriate manner to a person who is capable of giving effect to it. That deals with the problems that companies with an international dimension have if these things are served to an inappropriate employee—somebody who does not have the power to deal with the warrant.

We have also tabled a number of minor and technical amendments, many of which respond directly to issues raised by the Opposition and by the SNP in Committee. Others, such as amendments 92 and 126, provide important clarification on issues relating to the Independent Police Complaints Commission and the Police Investigations and Review Commissioner in Scotland.

These important changes reflect this Government’s willingness to listen to suggestions that will improve this vital piece of legislation. My right hon. Friend the Minister for Security will respond to other amendments when winding up. In the meantime, I look forward to another informed and wide-ranging debate.

--- Later in debate ---

[Andy Burnham]

My mistake; I did hear the Solicitor General say that he was meeting those bodies this week. It is a little disappointing—I am not making a petty point—as we wish we could have made more progress before this debate. As the right hon. Member for Haltemprice and Howden (Mr Davis) said, this is extremely important, and our debates would be improved if there had been more progress in this area. Nevertheless, it is clear that this is firmly on the Solicitor General’s radar, and the excellent points made by the hon. Member for Bromley and Chislehurst (Robert Neill) show that there is concern in all parts of the House about moving further to get this right. In the absence of acceptable Government amendments, amendments 139 to 141 tabled by my right hon. and learned Friend the Member for Camberwell and Peckham are a step in the right direction. If amendments were forthcoming from the Government, we would certainly support them.

[Mr David Davis]

This point has just occurred to me, looking at the exchange of letters between Front-Bench spokespeople on bulk collection. What the right hon. Gentleman has been saying about privilege, whether legal, parliamentary or journalistic, applies only to targeted interception, but a great deal of bulk interception is shared with our allies, the National Security Agency, and there is no carve-out for any of the protections that he has discussed. I can think of circumstances in which lawyers might be targeted by the NSA because their clients are suspects—or, indeed, irritating Members of Parliament might be targeted; I am thinking of the right hon. Gentleman. In the discussions between the Front-Bench spokespeople, when the bulk collection inquiry is progressed, that should be picked up, so that the issue is dealt with.

[Andy Burnham]

I do not know whether that was a compliment, but I will take it as such. The right hon. Gentleman raises an important point. To be fair to the Government, there has been movement on thematic warrants: if an MP or a journalist was to be added to a thematic warrant, there would be a judicial oversight process. The right hon. Gentleman mentions taking that principle even further and relating it to bulk data. I think that David Anderson would need to consider how practically possible that would be, but the right hon. Gentleman’s point needs to be considered.

Labour amendment 262 relates to trade unions and would amend clause 18 to ensure, in statute, that undertaking legitimate trade union activities is never in future a reason for the security services or police using investigatory powers. In recent times, we have been shining a light on this country’s past and learning more about how we have been governed and policed. Revelations about Bloody Sunday, Hillsborough, phone hacking, child sexual exploitation and other matters have all in different ways shaken people’s faith in the institutions that are there to protect us. They raise profound questions about the relationship between the state and the individual. Confronted with those uncomfortable truths about abuses of power, this House needs to provide a proper response and legislate to prevent them in the future. We need to redress the balance in favour of ordinary people and away from the Executive.

--- Later in debate ---

[Sir Edward Leigh]

There may be a difference, but I do not think it is a substantive one. [Interruption.] I am delighted that you are now sitting in the Chair, Mr Speaker, because I am talking about you, which I know you always enjoy me doing.

[Mr David Davis]

Surely one key point is that there would be an inhibition on a Secretary of State or a Prime Minister in the process of approaching the Speaker. They may not be inhibited about talking to each other about an uncomfortable Opposition Member, or indeed an uncomfortable Government Member, but they would be inhibited about approaching the Speaker. That is not separate to what goes on in the House. The one case that we have had was that of my right hon. Friend the Member for Ashford (Damian Green), when there was an approach to the Speaker of the day, which I am afraid ended in tears.

[Sir Edward Leigh]

Exactly. It is an inhibition, and I presume that the Home Secretary and Prime Minister would take that extreme step only because they were convinced that this was a matter of national security. Before they took such a step, which we all agree is serious, would it do any harm to consult somebody who is obviously completely separated from politics?

--- Later in debate ---

[Stephen McPartland]

I shall speak to four different sets of amendments. As I said earlier, it is a difficult Bill to support, but I acknowledge the work that Ministers and the Government have done in trying to work with Government Members and Opposition Members to produce a Bill with which we can all begin to start to feel comfortable. I am not a lawyer, but amendments 147 to 152, which stand in my name, are designed to leave out clauses that provide for the modification of warrants. In my view as a non-lawyer, these changes seem, through a major modification, to have the potential to change the key components of a warrant. I wonder at what stage a new warrant should be drafted instead. How far can the warrant be modified before it needs to become a new warrant? The warrant provisions seem to be very wide ranging and very ill defined.

The next set comprises amendments 178 to 186, which try to refine the matters to which targeted equipment interference warrants may relate by removing vague and overly broad categories, including equipment interference for training purposes. People outside this place may not be aware of it, but when we talk about “equipment interference”, we are basically talking about hacking devices that can hack into mobile phones, computers, email systems, or the apps that people use for their banking. “Equipment interference” is a nice way of saying state-authorised hacking, which is what we are talking about here. To me, this is an incredibly intrusive power, permitting real-time surveillance, as well as access to everything we store on our digital devices, from text messages to address books, calendars and emails, along with the websites people visit, which apps they use and how they use them.

The Bill also seems to me to provide for thematic hacking warrants, which amount to general warrants to hack groups or types of individuals in the UK. Hacking is not restricted in the Bill to equipment belonging to, used by or in the possession of particular persons or organisations. Even the director of GCHQ has apparently raised concerns about the breadth of the current definitions, which could apply to the equipment of a hostile foreign intelligence service. We here might say, “So what? So be it. That’s what they’re there for”, but what would we say if those warrants allowed all employees and family members of a particular company or the people who visit a particular religious venue or who live in a particular road to be hacked? Would we still say, “So what? Should we be bothered?” This may sound unlikely, but the draft equipment interference code of practice permits the targeting of people who are “not of intelligence interest”. If that is not carte blanche, I do not know what is, because it is in effect allowing hacking of the equipment of anybody anywhere in the UK or overseas, if the agencies choose to do so.

[Mr Davis Davis]

I am entirely in agreement with my hon. Friend on this. He says that it might not involve hacking a whole street, but it could easily involve hacking two layers of contacts. If I call 100 people, and then the people called by those 100 people are investigated, that would be a very typical intelligence exercise, pursuing the two rings of contacts. That could involve 100,000 people, most of whom have nothing to hide but could become under permanent surveillance by the state.

[Stephen McPartland]

I totally agree with my right hon. Friend’s point. As a Master of Science and Technology, I, of course, have never hacked anything in my life and would never dream of doing so, but it is not a particularly difficult thing to do at the moment. Many people do not appreciate that the measures in the Bill are authorising the state hacking of equipment. Combined with other measures in the Bill, this is not just about hacking the equipment of somebody who may be of particular interest as part of a terrorist organisation; we are talking about every man, woman and child with an electronic device inside the UK. That is where my concerns arise.

--- Later in debate ---

On the previous group of amendments, the Solicitor General said it was unfair or unhelpful to look at the facts in other jurisdictions, and he made a reasonable point about the difference between jurisdictions that have inquisitorial processes rather than the adversarial ones with which we are familiar. I gently point out to him that if he looks at other common law jurisdictions—America, Australia, Canada—he will find that the process of warrant authorisations in all those jurisdictions is done by judges, and that there is no precedent for a common law jurisdiction such as ours to embark on the procedure that the Government would have us follow tonight.

[Mr David Davis]

It is a pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael).

The Bill is undoubtedly necessary, in that it was preceded by interception and surveillance based on something like 66 different legal bases, and that was incomprehensible to almost anybody. I had hoped that the Bill would cover all the previous legal bases, but it does not do so. There are still matters that are not covered by the Bill. For example, the Intelligence Services Act 1994 is still avowed in the Bill, and is used as a mechanism for which it was not intended. I know that because I took that Bill through the House. I know what it was intended to do, and it was nothing like what it is now used for.

Since I have a very limited time, I will press on, but let me say this. Listening to most of the speeches on this group of amendments, I agreed with virtually all of them, particularly the points about modification. The right hon. and learned Member for Camberwell and Peckham (Ms Harman) and my hon. Friend the Member for Gainsborough (Sir Edward Leigh) made a very good point—whatever the mechanism—about the flaws in the current Wilson doctrine, as now laid down in the Bill. There are therefore many changes yet to come, and I imagine they will come in the Lords, or indeed in the law courts.

In the next few minutes, I will focus on the amendments in my name, principally amendments 208 to 211, which deal with the issue of the so-called double lock. Until the change proposed today, it was more like a double latchkey because it was not really as strong as it was represented to be.

Before I go into that matter, I should tell the House that I take the view that the whole interception strategy used by this country is, in any event, flawed. We are virtually the only serious country in the world that does not use intercept evidence in court. The arguments made by the Government and the agencies are ones that could equally be made anywhere in the world. No other authority follows that. The fact that interception evidence is not used in court is one of the reasons why rather sloppy legal disciplines apply to the use of interception, particularly relying on the Home Secretary to authorise interceptions.

Now, there are practical, principled and political reasons, as well as reasons of accountability, for that being wrong, full stop. The practical reason is that the Home Secretary has admitted to authorising about 2,500 of these things a year. That is 10 a day—not at most, but on average. On Second Reading, I asked her to tell us how long she took over any of them, but she refused and sidestepped the question. When this situation became public, after the Anderson report, I had letters from policemen who were involved in the creation of warrants who said that it was simply impossible and that 10 a day could not be done—a judge could not do 10 a day. That is the first problem.

The second problem is that we take our judgment from the current Home Secretary. She is very unusual. She has been in office for six years. That is incredibly unusual, and a great reflection on her. But a typical Home Secretary is not there for six years. I was shadow Home Secretary for five years and faced four different Home Secretaries—one and a half years apiece, roughly. What are we looking at, then? We will have someone who has typically been in office for a year or so making really serious judgments in a real hurry. That is not the way to make the sort of balanced judgments that we expect when we are balancing the privacy of our citizens on the one hand and their life and security on the other.

The second reason is one of principle. I take the view, as did David Anderson, that it is perfectly proper for Ministers of the Crown to approve anything that would involve a foreign intercept, let us say, that would create a political problem for the country. I see no argument whatever, other than the vestiges of royal prerogative, why Ministers should make judgments about warrants brought against citizens of this country. I can see nothing that justifies that. Our greatest ally, America, views it with horror. It causes us problems with American companies when those warrants are presented. America uses a solely legal process, which would be my preference.

The arguments on accountability are frankly laughable. I know of no Minister who has stood at that Dispatch Box and defended the issue or non-issue of a warrant—not one—and it is arguably not legal. The argument put in Committee, I think by the Minister of State, was that Ministers are accountable to the Intelligence and Security Committee. The current members of that Committee include some of my oldest and dearest political friends, but I have to tell the House that I would not trust a Committee that had to be nominated by the Prime Minister, that met in secret and whose reports were redacted to hold the Executive to account. I could go into the history. It missed the dodgy dossier, the torture and the mass surveillance, and got 7/7 wrong. It is not a Committee we can rely on for accountability until it has proved itself over many more years.

A politician should not sign these warrants off. We are not going to win that argument today, so what is the next best step? It is that a judicial process, based on the evidence—always, not optionally—be the check on the issue of these warrants. My preference is that that should happen before the Home Secretary sees them, not after. That might cut 2,500 down to 2,000, and make things a little more practical. The simple truth is it would be a better way in any well-designed system.

My amendments aim to improve the Bill in that regard. The Government have come up with a manuscript amendment that the former DPP, the hon. and learned Member for Holborn and St Pancras (Keir Starmer), says he thinks is acceptable. Until I have taken advice I cannot make a judgment on that, but for that reason, I will not press my amendments today. But I say to Members on the Front Bench that if their arguments on this issue do not stand up they will either collapse in the Lords or they will collapse in the law courts—one or the other. That is pretty certain.

A number of other issues have been raised today. Those include legal privilege, which as I say I think is the most important corrosion that is going on. We have heard about the Wilson doctrine, and about journalists and trade unions. It is now a wider issue. One thing that has come up in the past few years has been the misbehaviour of police forces and agencies with respect to demonstrators—the legitimate, proper and democratic operations of the Green movement, for example; there is also the blacklisting that the right hon. Member for Leigh (Andy Burnham) referred to. All those things need to be dealt with, and if the privacy guidance and clauses that are effectively built into the Bill do not do that, we must find a way to ensure that we do not just solve the problems of history, but that we solve problems for the future.

Investigatory Powers Bill

David Davis Excerpts

Tuesday 15th March 2016 Commons Chamber

[Mrs May]

My right hon. and learned Friend is absolutely right. The point about the Bill is that it makes it possible to intercept communications only under that dual authority—the double-lock that has been put into place—and it is not the case that the authorities are looking for generalised access to the contents of communications. I thank him for bringing that to the attention of the House.

[Mr David Davis (Haltemprice and Howden) (Con)]

As the Home Secretary says, this is an extremely important power but also a very sensitive one. As I understand it, she exercises it about 2,500 times a year, or about 10 times in each working day. Given that they are so sensitive, how long does she take, typically, over one of those decisions?

[Mrs May]

It is impossible to put a time on it, because each decision differs. The amount of information that is available, the type of case that one is looking at and the extent to which it refers to a matter that is already being considered vary. The amount of time I give to each case is the amount of time necessary to make the right judgment.

--- Later in debate ---

[Andy Burnham]

I will come to that very point, but these are not historical matters, because the convictions I just referred to still stand. I pay tribute to the Government, because they have a good record on this, but we need to go further to give the full truth about some of the darkest chapters in our country’s past, so that we can learn from them and then build the right safeguards into the Bill. The Bill will fail unless it entirely rules out the possibility that abuses of the kind I have mentioned could ever happen again. That is the clear test I am setting for the Bill.

That is also why I welcome the principle of the Bill. It leaves behind us the murky world of policing in the ‘70s, ’80s and ’90s, and holds out the possibility of creating a modern and open framework that makes our services more accountable while containing much improved safeguards for ordinary people. The Bill makes progress towards that goal, but it is far from there yet. It is clear that the Home Secretary has been in listening mode and responded to the reports of the three parliamentary Committees, but of the 122 recommendations in the three reports, the Government have reflected less than half in the revised Bill. She will need to be prepared to listen more and make further significant changes to the Bill if she is to achieve her goal of getting it on to the statute book by December.

I want to take the House through six specific concerns that we have with the Bill. The first is on privacy. As I said, people have a right to maximise their personal privacy, and given people’s worries about the misuse of personal data, the Intelligence and Security Committee was surely right to recommend that privacy considerations be at the heart of the Bill. A presumption of privacy would set the right context and provide the basis from which the exceptional powers are drawn. It would be the right foundation for the whole Bill: respect for privacy and clarity that any intrusions into it require serious justification. The Home Secretary said that privacy protection was hardwired into the Bill. I find it hard to accept that statement. I see the changes on this point as more cosmetic; they have not directly answered the Committee’s concerns. I therefore ask the Government to reflect further on this matter and to include a much stronger overarching privacy requirement, as recommended by the Committee, covering all the separate powers outlined in the Bill.

Also on privacy, we do not yet believe that the Government have gone far enough to protect the role of sensitive professions. The Committee noted that the safeguards for certain professions must be applied consistently across the Bill, no matter which investigatory power is being used to obtain the information, but it is hard to see how that is achieved at the moment. On MPs and other elected representatives, the Bill codifies the Wilson doctrine, but there is a question about why it stops short of requiring the Prime Minister to approve a warrant and requires only that he be consulted. The Bill could be strengthened in that regard. On legal privilege, the Law Society has said that, although it is pleased to see that the Government have acknowledged legal professional privilege, it needs more adequate protection, and it believes that that should be in the Bill, not just the codes that go with it.

[Mr David Davis]

On the Wilson doctrine, the wording of the Bill, as I understand it, relates to communications between Members of Parliament and constituents. That does not cover the whole Wilson doctrine, which covers communications between Members of Parliament and whistleblowers, between Members of Parliament and each other, and between Members of Parliament and campaigning organisations. They should all be protected. Does the right hon. Gentleman agree?

[Andy Burnham]

I do agree with the right hon. Gentleman. I was making the point that the provisions need to be strengthened in respect of prime ministerial approval, but also in the way that he describes to give our constituents that extra trust, so that if they come to speak to us in our surgeries, they can be sure that they are speaking to us and nobody else.

--- Later in debate ---

[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.

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”

NSA’s bulk records programme

“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 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.

[Several hon. Members rose—]