Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill
Joanna Cherry Excerpts(8 years, 1 month ago)
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Joanna Cherry
On a point of clarification relating to the intervention by the right hon. and learned Member for Beaconsfield (Mr Grieve) about the letter to The Guardian signed by over 200 senior lawyers, is the right hon. Lady aware that the letter takes issue with bulk interception warrants and bulk equipment interference warrants, which even the Intelligence and Security Committee says should be removed from the Bill?
Mrs May
I will come on to talk about the bulk warrants, but it was clear from the Committee reports that the powers in the Bill are necessary. The ISC raised a question about the bulk equipment interception warrants, but, following that, the Government have produced further information on all bulk cases. We published some case studies and examples of how the powers would be used alongside the redrafted Bill.
Mrs May
I reiterate the point that I made previously and again just now: 100% of the compliance costs will be met by the Government. My hon. Friend asks me to provide a long-term commitment for that, and we are clear about that in the Bill. As she will be aware, it is not possible for one Government to bind the hands of any future Government in such areas, but we have been clear about that issue in the Bill and I have been clear in my remarks today.
Alongside the draft code of practice, I have published—at the Joint Committee’s request—a comparison of the differences between the proposals in the Bill and those set out by Denmark in recent years. I have also held further discussions with UK and US communications service providers on the proposals in the Bill, and we will continue to work closely with them as we implement this new power. As a guarantee of that, we have included a commitment that the Home Secretary will report to Parliament on how the Bill is operating within six years of Royal Assent. If Parliament agrees, it is our intention that a Joint Committee of both Houses will be formed five years after the Bill receives Royal Assent, specifically to undertake a review of the new legislation and to inform the Home Secretary’s report.
Part 5 of the Bill deals with equipment interference—for example, the acquisition of communications or information directly from devices such as computers or smartphones. By bringing existing powers into the Bill, we have responded to recommendations made by David Anderson, QC, and by the Intelligence and Security Committee. The Bill places those powers on a clear statutory footing, and makes their use subject to the issue of warrants that must be approved by a judicial commissioner.
Hon. Members will be aware that not only are those powers already available to law enforcement bodies, but they are vital to so much of their work to prosecute serious criminals. In exceptional circumstances, that capability is also used to deal with threat-to-life situations that fall short of serious crime, most typically to identify missing persons. For example, we would all expect that when a child goes missing and the parents know the password to their social media account, that the police should be able to use that password to search for vital clues. The Bill preserves capabilities that are already available to law enforcement, and makes it clear that they can be used to save lives. Nevertheless, these are intrusive powers and their use must be strictly limited. In future, all equipment interference warrants will require the approval of a judicial commissioner.
The draft code of practice, which I published alongside the Bill, constrains the use by law enforcement of more novel or advanced techniques that hon. Members might reasonably expect to be the preserve of the National Crime Agency and similar bodies. Equipment interference warrants may only be served on communications service providers with the personal agreement of the Secretary of State.
Alongside the draft codes of practice, and in response to recommendations of the Intelligence and Security Committee, we published a comprehensive public case setting out how bulk powers—for interception, communications data and equipment interference—are used, and why they are more necessary than ever before. There are, of course, limits to how much can be said about those most sensitive bulk capabilities without handing an advantage to criminals and those who mean us harm. For that reason, the security and intelligence agencies have provided further, classified detail about the use of those powers to the Intelligence and Security Committee.
As the publicly published case for bulk powers makes clear, such powers are vital to the effective working of the agencies. They have played a significant part in every major counter-terrorism investigation over the past decade, including in each of the seven terrorist plots disrupted since November 2014. They have been essential to detecting more than 95% of cyber-attacks against people and businesses in the UK identified by GCHQ over the past six months, and they enabled more than 90% of the UK’s targeted military operations during the campaign in the south of Afghanistan.
Part 6 of the Bill places these powers on a clearer statutory footing and makes them subject to robust and consistent safeguards. In future, bulk warrants will need to be authorised under the double lock regime that I have described. Furthermore, the examination of any data obtained under a bulk warrant will need to be for an operational purpose that has been approved by a Secretary of State and an independent judge.
Joanna Cherry
Other hon. Members have mentioned protection for the communications of parliamentarians. Does the Home Secretary agree that the provision in the Bill does not protect parliamentarians from having their communications to and from constituents scooped up by bulk collection provisions, or with communications data or internet connection records, which could lead to whistleblowers being identified?
Mrs May
I could give a variety of responses to those points. The hon. and learned Lady must be aware that certain bulk powers are predominantly those for foreign usage, rather than in relation to the United Kingdom. With bulk powers, where there is any interaction with individuals in the UK, the double lock authorisation is still necessary to ensure that the examination of the information is subject to the same sort of tests regarding necessity and proportionality.
Part 7 applies those safeguards to the retention and use of bulk personal datasets. Such information is already used by the security and intelligence agencies to keep us safe, and may be acquired under existing powers. However, the Bill introduces powerful new privacy protections so that the personal data of innocent people are always subject to strong robust safeguards, irrespective of how they were acquired.
I said that privacy safeguards are at the heart of this Bill, and the guarantor that those safeguards will be effective and adhered to—both in substance and in spirit—will be the new Investigatory Powers Commissioner, or IPC. Created under part 8 of the Bill, the commissioner, who will hold or have held high judicial office, will oversee a world-leading new oversight body, bringing together the existing responsibilities of the Interception of Communications Commissioner, the Intelligence Services Commissioner and the Chief Surveillance Commissioner. The new Investigatory Powers Commissioner will be provided with an enhanced budget and a dedicated staff of commissioners and inspectors, as well as technical experts and independent legal advisers. They will have access to the staff and systems of the agencies, and will have a remit to provide Parliament and the public with meaningful assurance about how the powers in the Bill are being used. When a person has suffered as a result of a serious error in how the powers in the Bill are used, the IPC will have a new power to inform the victim without the need to consult the Investigatory Powers Tribunal, which will itself stand ready to hear any claim and will have the power to quash warrants, award compensation or take any other remedial action it feels appropriate.
I turn now to part 9 of the Bill and clause 217, which provides for requests to be made to communications service providers to maintain permanent technical capabilities to give effect to warrants, and, in connection with that, to maintain the ability to provide copies of communications in an intelligible form. Let me be clear: this provision only maintains the status quo. It allows law enforcement and the security and intelligence agencies to ask companies to remove encryption that they have applied or that has been applied on their behalf. It would not—and under the Bill could not—be used to ask companies to do anything it is not reasonably practicable for them to do.
Finally, alongside the Bill, we have taken forward the recommendation made by Sir Nigel Sheinwald to develop an international framework to ensure that companies can disclose data, a point I made in response to my hon. Friend the Member for The Wrekin (Mark Pritchard). We are in formal negotiations with the United States Government and are making good progress. The provisions in the Bill are drafted to accommodate any such agreement. Any company co-operating with its obligations through an international agreement will not be subject to enforcement action through the courts.
The Bill provides unparalleled transparency on our most intrusive investigatory powers, robust safeguards and an unprecedented oversight regime, but it will also provide our law enforcement and intelligence agencies with the powers they need to keep us safe. Because of its importance, our proposals have been subject to unprecedented levels of scrutiny, which has resulted in a Bill that really does protect both privacy and security—it is truly world-leading. I look forward to the revised Bill now receiving full and careful consideration by both Houses. I commend it to the House.
Andy Burnham
I disagree. I am making a legitimate point about which we feel strongly. I am saying that the most intrusive powers in the Bill should be strictly limited to national security. The hon. Gentleman has a different view, but I believe that serious crime and national security should be the strictly limited grounds on which the most intrusive warrants are applied for. I hope that he will approach the issue in a spirit similar to the one in which I have approached it: I hope that he will look into the concern that I have raised in more detail and try to understand why Labour Members feel so strongly about it.
Joanna Cherry
The hon. and learned Member for South East Cambridgeshire (Lucy Frazer) talked about barristers presenting cases to judges. Does the right hon. Gentleman agree that, given the double-lock model in the Bill, there will be no barristers arguing the case before the judicial commissioner? That is exactly the point. There will be no gainsayer and no proposer; there will simply be a judicial review, an exercise carried out by the judicial commissioner on his or her own.
Andy Burnham
That is an important point, which I shall come to in a moment.
I was talking about bulk powers. Important concerns were raised by the Intelligence and Security Committee about scope, oversight and the more generic class warrants, and I do not believe that they have been adequately answered. One of the Joint Committee’s recommendations was that the Government should establish an independent review of all the bulk powers in the Bill. Given the complexity and sensitivity of the issue, I think that the House would benefit from that, so my specific ask is for the Home Secretary to commission such a review, to be concluded in time for Report and Third Reading.
Our fifth concern is about judicial oversight, and relates to one of our earliest demands in respect of the Bill. The Government have given significant ground in this area, and, as the Home Secretary said, the Bill is stronger as a result. However, we believe that it could be stronger still. It currently says that, when deciding whether to approve a decision to issue a warrant, a judicial commissioner must apply
“the same principles as would be applied by a court on an application for judicial review.”
The point has just been made by the hon. and learned Member for Edinburgh South West (Joanna Cherry).
I have previously shared with the Home Secretary my fear that that could mean a narrower test, taking account of only the process and reasonableness of the Home Secretary’s decision rather than the actual merits and substance of an application. I was listening carefully to what she said at the Dispatch Box earlier, and I thought I heard her provide reassurance that a much broader consideration could be provided by a judicial commissioner. I hope that that is the case, and if it is, why not delete the judicial review clause from the Bill? That would make it absolutely clear this is not just a double lock but an equal lock, in which the judicial commissioner has the same ability look at the entire merits of the case.
Our sixth and final concern relates to the misuse of the powers. I accept the concerns of the Police Federation that there need to be safeguards for the collection of data in a lawful manner, but I also agree with its view that the Bill needs to make it clearer that an overarching criminal offence is created for the deliberate misuse of any of the powers. That should relate to the obtaining of data and to any use to which those data are subsequently put. Both should be a criminal offence. That would provide an extra safeguard for the public.
I have set out six substantive issues that must be addressed. Given the seriousness of these concerns, people have questioned why we are not voting with the Government tonight—[Interruption.] We are voting neither with them nor against them. The simple answer is that we need new legislation but the Bill is not yet good enough. That is why we have set these tests. Simply to block this legislation would in my view be irresponsible. It would leave the police and security services in limbo and, as communications migrate online, that would make their job harder. We must give them the tools they need to do the job. If we did not put new legislation on the statute book, we would leave the public exposed to greater risk because they would not have the safeguards that are in the Bill.
However, let me be clear that there is no blank cheque here for the Government. We will not be voting for the Bill tonight because it is some way from being good enough, and if the Government fail to respond adequately to the concerns I have raised, I give notice to them that we will withdraw our support for the timetabling of the Bill. It is as simple as that. The public interest lies in getting this right and in not sacrificing quality to meet the deadline. The time has come for the House to lay politics aside and to find a point of balance between privacy and security in the digital age that can command broad public support.
We on these Benches have worked hard to uncover the truth about some of the dark chapters in our country’s past precisely so that we can learn from them and make this country fairer for those coming after us. I want a Bill that helps the authorities to do their job but protects ordinary people from intrusion and abuse by those in positions of power. I also want Britain to be a country that gives its people individual privacy and collective security. Our shared goal should be a Bill that enhances our privacy, security and democracy and—with goodwill and give and take on both sides—I believe that that is within our grasp.
Joanna Cherry (Edinburgh South West) (SNP)
Before I begin my speech, on behalf of the Scottish National party I want to associate myself with the comments of the Home Secretary and shadow Home Secretary regarding the death of the prison officer in Northern Ireland and extend my party’s heartfelt condolences and sympathies to his family, colleagues and friends.
The SNP joins the MPs from all parties in the House who have grave concerns about many aspects of the Bill. We do not doubt that that the law needs a thorough overhaul and welcome attempts to consolidate a number of statutes in order to have a modern, comprehensive law. We also recognise that the security services and police require adequate powers to fight terrorism and serious crime. However, such powers must always be shown to be necessary, proportionate and in accordance with the law. In particular, powers must not impinge unduly on the right to privacy or the security of private data. We feel that many of the Bill’s powers do not currently pass those tests. For that reason, the SNP cannot give its full support to the Bill in its current form. We intend to join others in the House to ensure that the Bill is as extensively amended as possible. We shall be abstaining today, but if the Bill is not amended to our satisfaction, we reserve the right to vote against it at a later stage.
The Bill is a rushed job that comes on the back of a draft Bill that lacked clarity and did not go far enough to protect civil liberties. In recent weeks, three parliamentary Committees have expressed significant misgivings about many aspects of the draft Bill and made extensive recommendations for its revisal. The Bill was published barely two weeks after the ink was dry on the last of those three reports, leaving insufficient time for the Government to go back to the drawing board to deal adequately with the concerns expressed by the three Committees. Like others in the House, SNP Members were concerned to read last week that the United Nations special rapporteur on the right to privacy concluded that some of the Bill’s proposals fail the benchmarks set in recent judgments of the European Court of Justice and the European Court of Human Rights. [Interruption.] Government Members may scoff, but I invite them to read his report as it contains a careful exploration of recent case law and should not be dismissed lightly.
The benchmarks suggest that surveillance should be targeted by means of warrants that are focused, specific and based on reasonable suspicion. Under the Bill, however, targeted interception warrants may apply to groups of persons or more than one organisation or premises. Bulk interception warrants lack specificity and lack any requirement for reasonable suspicion, giving licence for speculative surveillance. The shadow Home Secretary questioned whether we should be using the term “mass surveillance” in relation to this Bill, and I wonder whether it would be more accurate to say that aspects of the Bill permit “suspicionless surveillance”, which leads to civil liberties concerns. Another aspect of the Bill that concerns us is that an actual threat to national security is not required.
The powers to retain internet connection records and the bulk powers go beyond what is currently authorised in other western democracies and thus could set a dangerous precedent and a bad example internationally. The only other western democracy to authorise the retention of material similar to internet connection records was Denmark, which subsequently abandoned its experiment having found that it did not yield significant benefits for law enforcement. I see the Home Secretary looking at me and I am sure that she will argue that her proposed scheme differs from Denmark’s, but the devil is in the detail, which we will need to consider closely in Committee. The USA is rolling back from bulk data collection having found it to be unconstitutional in some cases and of questionable value in fighting terrorism. It is for this Government to justify why they alone are required to go so much further than other Governments in western democracies. Such operational cases as have been produced are anecdotal and hypothetical and do not constitute independent evaluation of the utility of bulk powers.
Lucy Frazer
If the hon. and learned Lady thinks that international comparisons are important, does she agree that the judicial authorisation procedure proposed by the Home Secretary goes further than in other European examples, such as Germany, the Netherlands and France?
Joanna Cherry
We need to compare apples with apples and oranges with oranges. A more correct comparison is with jurisdictions such as Canada and America, the systems of which are more similar to ours than the continental European jurisdictions that the hon. and learned Lady describes, but I will come back to that when I get to authorisation.
I am sure everyone in this House wants to get the balance right between protecting civil liberties, and giving the security services and the police the necessary and proportionate powers to fight serious crime and terrorism. However, we in the Scottish National party believe that the Government’s attempt has not got that important balance right and we are looking forward to working with other parliamentarians to try to get it right. We are worried that the Government are not giving sufficient time for the consideration of this enormous Bill. The 14 Home Office documents relating to the Bill that were released to Parliament on 1 March, including the Bill itself, extend to 1,182 pages, which is almost treble the amount of material released with the draft Bill last November. There is a suspicion that the amount of material being released in large tranches, coupled with relatively short timescales within which to consider and amend proposals, is an indication that the Government do not really want proper parliamentary scrutiny of this. We are determined to do our best to make sure that sufficient parliamentary scrutiny is provided.
Mrs May
Let me be absolutely clear about this. I have been in this House long enough to see Bills go through the House where parliamentarians have complained when the Government have failed to bring codes of practice that should sit alongside the Bill to the House at the very first stage of the debate. This Government have brought those codes of practice to the House more than several days before Second Reading, precisely so that Members of this House have an opportunity to see them and consider them alongside the Bill.
Joanna Cherry
The Home Secretary misunderstands my complaint—it is not about the fact that the material has been produced. My complaint is that the material has been produced with a timescale following thereon that is not sufficient for us to scrutinise it properly. I must make something crystal clear before I go any further: the SNP will not be morally blackmailed or bullied by Conservative Members into blind support for a Bill of dubious legality in some respects, which seeks powers that go beyond those of other western democracies. We are not going to tolerate any suggestion that by seeking proper scrutiny of the Bill and full justification for the far-reaching powers sought, we are being soft on terrorism and serious crime. I would associate myself with the other main Opposition party in that respect.
Let me give hon. Members an example of why they can be assured that the SNP is not soft on terrorism or serious crime. We have been in government in Scotland for nine years and we have shown ourselves to be a responsible Government. Although issues of national security are reserved, we have always co-operated closely with the UK Government, for example, when Glasgow airport was attacked by terrorists in 2007. Our record in fighting crime in Scotland is second to none. The Scottish Government have got recorded crime down to a 41-year low and we are committed to a progressive justice policy. We will not, therefore, stand accused of being “soft” on serious crime or terrorism, because that is simply not a fair statement to make.
In the coming years, we confidently expect to be devising the security policy of an independent Scotland, and it will be a responsible security policy that will not only seek to work closely with near neighbours on these islands, but will look to international models from other democracies and strive to take proper cognisance of international human rights norms and the rule of law. That is all we are about in our opposition and in our scrutiny of this Bill.
Our concerns about the Bill are not just our concerns. They are shared by: the parties sitting around me; many Conservative Members sitting opposite me; many of the members of three parliamentary Committees; non-governmental organisations; the technical sector; eminent legal commentators—more than 200 senior lawyers signed that letter in The Guardian today; communications service providers; and the UN special rapporteur on the right to privacy. [Interruption.] I hear somebody shout confidently from the Government Benches that the 200 lawyers who signed that letter are wrong. I suggest that he or she—I think it was probably a he—looks at the list of those who signed it and perhaps accords them a bit more respect; there is room for a difference of opinion here.
Sammy Wilson (East Antrim) (DUP)
For clarification, so that the hon. and learned Lady is not seen to be speaking for my party, may I ask whether she accepts that the balances in the Bill that the Secretary of State has outlined are, by and large, supported by people in Northern Ireland, simply because we have gone through the experience of terrorism and know how important such safeguards are for the general public?
Joanna Cherry
I always listen carefully to what the hon. Gentleman and his colleagues have to say because, as he says, they have experienced terrorism—indeed, they are, sadly, still experiencing it as a result of the tragic news we heard today. I apologise if I in any way included him in a sweeping statement, but I do not agree with him that the Government have got the balance right, and that is the whole purpose of my speech today.
The point I am seeking to make is that it is the job of a responsible Opposition not only to oppose responsibly and to scrutinise, but to articulate and inform public concerns. The public are concerned about this, and there is greater public knowledge about this Bill than perhaps there was last time around. A survey commissioned by Open-Xchange found that only 12% of the public believe that the Home Secretary has adequately explained the impact of the Bill to the UK public and presented a balanced argument for its introduction. I suspect that it is possibly a little unfair, pinning it all on the Home Secretary, because it is the responsibility of all of us in this House to inform our constituents about this Bill and where it is going.
Joanna Cherry
I hope the hon. Gentleman will not mind if I make some progress for the time being and possibly give way later. I mentioned the letter to The Guardian. I am conscious that the right hon. and learned Member for Beaconsfield (Mr Grieve), the former Attorney General, has expressed his view on the matter. I would always accord that the respect it deserves, but I respectfully disagree with him. The letter to The Guardian from the lawyers today was focused initially on the problem of bulk intercept. Even the Interception of Communications Commissioner’s Office, the independent watchdog, has said that bulk intercept provides “generalised initial interception”, and that is the issue here—it is the generality, and the lack of focus and specificity, that the lawyers are worried about.
Mr Grieve
I should emphasise that I take the letter seriously, because I regard it as a serious matter. If what was happening was what was set out in the first objection by those writing it, it would be a very serious matter indeed: the House would be sanctioning a system by which there was generalised access to electronic communications, in bulk. The point at issue is that that is not what actually goes on at all. Not only that, but if one looks at the Bill, one sees that it is clear that that should not be able to go on and that we will prevent it from happening if there is any possible risk of it. We have been round this issue on many occasions, and this is why there is a difficulty of communication and understanding on something that is fundamental to the way in which the agencies go about this work.
Joanna Cherry
I can only reiterate that I and many others, including more than 200 lawyers who signed this letter, disagree with the right hon. and learned Gentleman on this occasion and about this point. One thing that this issue illustrates is the importance of having very focused language in Bills dealing with such major matters of constitutional importance, rather than having vague language, which is not properly understood and which can on a later day be twisted by those it suits, to expand to cover powers that were not envisaged at the time. We are all well aware that that has happened in the past.
We should not dismiss too lightly the importance of the notion of the rule of law overarching this Bill. If the Government really want this legislation to be world-leading, they cannot have legislation that potentially violates international standards. As things stand, the UK is still bound by the jurisdiction of the European Court of Justice; there were no proposals to withdraw from the charter of fundamental rights in the agreement negotiated by the Prime Minister over Europe last month. We are still awaiting proposals for the repeal of the Human Rights Act, but the Government have recently been moving to reassure us that we will not be withdrawing as a signatory from the Council of Europe. We are therefore still going to be bound by the Court in Luxembourg and the Court in Strasbourg. Many distinguished lawyers believe that if this Bill is not significantly amended, the law of the UK will be on a collision course with those European Courts. I remind the Government that an unamended Bill could result in unnecessary and expensive litigation. It could require Parliament to revise the law all over again at some point in the future. That should not happen, provided that we ensure that the law meets international standards. [Interruption.] I hear Government Members shouting at me, “Which parts?” I will come to that when I get into the meat of my speech. [Interruption.] I suggest that they read the report that has come from the UN rapporteur on the right to privacy, and consider the law here. They may prefer to follow in the footsteps of Russia, which last December passed a law allowing its constitutional court to decide whether to comply with international human rights courts, but I would suggest that, on these matters at the very least, Russia is perhaps not the best role model for the United Kingdom.
I want to challenge the premise that the more privacy we sacrifice, the more security we gain, because that is not backed up by the evidence. Indeed, some of this House’s Committees have heard evidence that swamping analysts with data can impede investigation, because they are unable to find the crucial needles in the haystack of information before them. We should be looking at how to achieve security in a really intelligent way, not blanket data retention and suspicionless surveillance.
The Home Office responded to the Intelligence and Security Committee’s recommendations by simply adding one word to the start of the Bill so that the first part now refers to “privacy”. It has not, however, added any detail relating to any overarching principles of privacy. Its response to the ISC seems somewhat cynical.
I have indicated that the SNP is concerned about a number of aspects of the Bill. Time does not permit me to tackle all of them, but I am concerned about four in particular. I will endeavour to keep my comments to a minimum, bearing in mind that I speak on behalf of the third party in the House.
Our first issue with the Bill is the legal thresholds for surveillance; the second is the authorisation process, which the shadow Home Secretary has already talked about; the third is the provision for the collection of internet connection records; and the fourth is bulk powers, which I have already mentioned.
On the legal thresholds for surveillance, the Government essentially want to re-legislate on RIPA’s three broad statutory grounds. The SNP is not alone in its concern that those grounds are unnecessarily broad and vague and dangerously undefined. The Joint Committee on the draft Bill recommended that it should include definitions of national security and economic wellbeing, but that has not been done. The ISC recommended that economic wellbeing should be subsumed within a national security definition, finding it “unnecessarily confusing and complicated”. Those recommendations have been dismissed and the core purposes for which extraordinary powers can be used remain undefined and dangerously flexible.
On the authorisation of warrants, we welcome the move towards greater judicial involvement, and we acknowledge the fact that the Government have moved considerably towards the double lock. However, I agree with the shadow Home Secretary, because we also want an equal lock. Judicial review is not the same as judicial authorisation. Judicial review creates the illusion of judicial control over surveillance, and it does not achieve enough movement away from the status quo.
I want to give some concrete examples of that. The case law of the United Kingdom Supreme Court shows that, in civil proceedings that do not relate to deprivation of liberty, a less intensive standard of judicial review is applied—more Wednesbury reasonableness than strict necessity and proportionality—and that is why many fear that that is what will happen if the Bill is passed unamended. There will be little or no scope for review on the merits.
Suella Fernandes
Will the hon. and learned Lady accept that she is simply wrong? In their evidence to the Joint Committee, of which I was a member, Sir Stanley Burnton, senior judicial commissioner, and Lord Judge, senior surveillance commissioner, were clear that the Wednesbury unreasonableness standards had no place in this context. The wording of the Bill is clear, importing a clear judicial review standard involving necessity and proportionality.
Joanna Cherry
The hon. Lady will no doubt be unsurprised to hear that I do not accept that I am wrong. She is cherry-picking her way through the evidence that was heard. There was evidence contrary to the position that she has stated. I accept that there is a debate about this point, but I take the side that the review of judicial review principles does not go far enough. Why not go as far as other countries? Why not have one stage of judicial authorisation? That is the norm in comparable jurisdictions, by which I mean the United States, Australia and Canada. Judicial authorisation would help us, because it would encourage co-operation from US technology firms.
On a practical note, a two-stage process—whereby the issue goes to a Minister first and then to a judicial commissioner—risks delay. There is a huge volume of surveillance warrants, and it looks like there will be an awful lot more as a result of this Bill. It is unsuitable for a small number of Cabinet Ministers to deal with them.
I want to deal with another false premise that is often used to justify ministerial involvement in the issuance of warrants. Some people seek to argue that Ministers are democratically or politically accountable to this House on the issue of surveillance warrants, but that is a misconceived argument. Ministers are not really democratically accountable for their role in issuing warrants, because, first, the disclosure of the existence of a warrant has been criminalised and it will remain as such under the Bill. Secondly, all of us know—even those such as me who have been in this House for only nine months—that requests for information concerning such matters in this House are routinely parried with claims about national security. I do not accept that Ministers are practically, politically or democratically accountable to this House on the issuance of warrants. To return to the jurisprudence of the Strasbourg Courts, they have made it very clear that it is important to have effective supervision by an independent judiciary. We query whether the double lock mechanism meets that test.
We agree with many others that the case for collecting internet connection records, including the claimed benefit for law enforcement, is flawed. That is not just my say-so: there are many concerns across the industry. People who understand the technicalities far better than I do have explained the problem to me. I again associate myself with what the shadow Home Secretary said: the internet is not like the telephone system. An internet connection record cannot be compared to a telephone bill. The phone system consists of a set of records relating to when A calls B. If we collect phone system records, we will see at what time A called B and the duration of the call. As I understand it, the internet is more like a mailbox that collects packets of information and then takes them from A to B.
To take a rather middle-aged example, if somebody uses the Facebook messenger service, all the internet connection record will show is that he or she has connected to Facebook messenger. It will not show with whom he or she then communicated, because that occurs at a higher or lower level or in another unreachable packet. The internet connection record will not show the when, where and who that the Government say they want, and which they already get from phone records.
What the internet connection records will show is a detailed record of all of the internet connections of every person in the United Kingdom. There would be a 12-month log of websites visited, communication software used, system updates downloaded, desktop widgets, every mobile app used and logs of any other devices connected to the internet. I am advised that that includes baby monitors, games consoles, digital cameras and e-book readers. That is fantastically intrusive. As has been said, many public authorities will have access to these internet connection records, including Her Majesty’s Revenue and Customs, and the Department for Work and Pensions, and it will be access without a warrant. Do we really want to go that far? There is no other “Five Eyes” country that has gone as far. David Anderson QC said:
“Such obligations were not considered politically conceivable by my interlocutors in Germany, Canada or the US”
and therefore, he said, “a high degree of caution” should be in order.
Finally, let me turn to bulk powers. I have already made the point that even the Interception of Communications Commissioner’s Office says that bulk provides at the outset generalised initial intercept. We became aware of these bulk interception programmes only when they were disclosed by Edward Snowden in June 2013—whatever Members think about those disclosures and whether they were appropriate, that is how we became aware of the matter. This House has never before debated or voted on bulk powers, so we are being asked to do something very novel and very challenging, and we must do it properly.
The power to conduct mass interception has been inferred from the vaguely worded power in section 8(4) of RIPA, which illustrates the danger of vaguely worded legislation. Targeting bulk warrants at a telecommunications system or at entire populations rather than at specific individuals is a radical departure from both the common law and human rights law, yet that is the approach that will be maintained in this Bill. In many respects, that is the most worrying part of the Bill. Indeed, it is the part of the Bill about which the UN special rapporteur on privacy is most concerned. Let me read what he said, because it is very respectful of the tradition of the United Kingdom and it makes some very good points. He said:
“It would appear that the serious and possibly unintended consequences of legitimising bulk interception and bulk hacking are not being fully appreciated by the UK Government. Bearing in mind the huge influence that UK legislation still has in over 25% of the UN’s member states that still form part of the Commonwealth, as well as its proud tradition as a democracy which was one of the founders of leading regional human rights bodies such as the Council of Europe, the SRP encourages the UK Government to take this golden opportunity to set a good example and step back from taking disproportionate measures which may have negative ramifications far beyond the shores of the UK. More specifically, the SRP invites the UK Government to show greater commitment to protecting the fundamental right to privacy of its own citizens and those of others and also to desist from setting a bad example to other states by continuing to propose measures, especially bulk interception and bulk hacking, which prima facie fail the standards of several UK parliamentary Committees, run counter to the most recent judgements of the European Court of Justice and the European Court of Human Rights, and undermine the spirit of the very right to privacy.”
The rapporteur is appealing to the better tradition in this country, and saying that we should look at this Bill very carefully. He is suggesting not that we should throw it out, but that we scrutinise it very carefully, bearing in mind how far it intends to go in comparison with other countries and with existing international case law.
Andy Burnham
The hon. and learned Lady has made a very good speech this afternoon. Government Members should be working a little harder to reach out and build consensus. Before she finishes, may I invite her to say whether she will be supporting our call in Committee and on Report to make internet connection records accessible only through a warrant based on serious crime, not any crime, to give protection, and also for a clear definition of national security?
Joanna Cherry
Those are both issues on which we will work with the Labour party. I have already indicated that we intend to attempt to amend the Bill extensively in Committee. We are very concerned about internet connection records. We query whether their retention is necessary or appropriate at all, but we will look seriously at proposals put forward by other parties and will work with them.
The SNP is in favour of targeted surveillance. We welcome the double lock on judicial authorisation as an improvement, but it does not go far enough. Our concern is, quite clearly, that many of the powers sought in this Bill are of dubious legality and go further than other western democracies without sufficient justification. It is for that reason that we cannot give this Bill, in its current form, our full support. We will work with others to attempt to amend it extensively. Today, we shall abstain, but if the Bill is not amended to our satisfaction, we reserve the right to vote it down at a later stage.
Rebecca Harris (Castle Point) (Con)
I am delighted that we are finally bringing forward this long-overdue Bill. Cases such as Apple’s dispute with the FBI underline how modern criminals can hide behind modern technology. Criminals and terrorists are international and depend on international networks and systems. I could recite a list of the hideous terrorist atrocities that have happened throughout the world over the past year, but only today we heard of the tragic death of Adrian Ismay, the prison officer who was attacked in Belfast 10 days ago. Since the debate began, the news has been reporting armed raids in Brussels relating to last year’s Paris attacks, so we are doing current and vital work today. Such criminal acts do not simply happen and are rarely the work of individuals; they are highly organised events planned by groups, and we need to be able to uncover those networks.
The Bill is about not only terrorist activity, but all kinds of crime, such as serious and organised crime, child abduction, people smuggling and, most horrible of all, child pornography, which, horrendously, is the fastest-growing form of online business. One can now even arrange child abuse to order online. I have seen at first hand the work of the police who are trying to tackle online child pornography and it is tough, horrible, but necessary work. We must not allow their hands to be tied as a result of some wrong-headed, neurotic anxiety about data retention.
The UK is lucky to be protected by the finest, most-principled security services in the world. Their job is to conduct themselves in private to protect all the freedoms that we take for granted most of the time, yet enormous public damage was done when a previous attempt to update investigatory powers legislation was dubbed the snoopers charter. It was a gross distortion of the legislation’s aims to imply that the British Government were somehow trying to spy on their own citizens. It was just straightforward political scaremongering.
Joanna Cherry
Will the hon. Lady acknowledge that Opposition Members have been careful today not to use “snoopers charter” and have tried to be measured in their important criticisms?
Rebecca Harris
I absolutely appreciate that. I was not pointing my finger at any political party in particular, but some campaign groups outside the House may have used the term.
Many constituents, perfectly ordinary, good, law-abiding people, have written to me in the genuine, albeit absurd, belief that there is—or will be—some vast room full of security personnel trawling through their Facebook profiles and the pictures of their grandchildren and their cats. As legislators, we cannot just reassure people that we would need a security service the size of the population of China to do that and simply cannot afford it, even if we had the inclination, so I am glad that the Bill clearly sets out the four key purposes that data retention and investigatory powers cover. I hope that that will reassure those who have been worried and frightened. I also appreciate the benefits of the double lock, the extra judicial oversight of which will also reassure the public, although I would like to be reassured myself that that oversight will not hamper the investigative abilities of our security services and police. There are many wonderful hon. and learned Members here today but, as I sometimes hear, lawyers can often have very different views on tiny subjects when the straightforward common sense of my constituents would know exactly when we needed to regulate on something. I wish to be reassured that we are confident that we will not over-burden the process of warrantry, to the extent that security services personnel may feel that perhaps it is a little too much effort to go down that route, given that time may be of the essence and they will need to act with speed.
We all know that we are targets for international terrorists, and that the things they hate and target us for are our freedoms, democracy and liberty. We must therefore make it clear that this Bill ensures we protect those freedoms and is in no way any form of attack on them.
Alex Chalk (Cheltenham) (Con)
Striking the right balance between liberty and security is one of the most difficult judgments we have to make as a society. Anyone who has prosecuted and defended in our criminal courts—I see several here—well understands the tension that exists between the need to protect the public from harm and preserving our precious individual freedoms. This is therefore an immensely difficult issue, and if we get it wrong, the consequences are indeed serious. But the fact that we are able to approach this Bill in a calm atmosphere, and not against a backdrop of the panic and emotion of a recent outrage, is in no small part due to the constituents of mine working at GCHQ. Their quiet, brilliant work saves lives. They avoid the limelight and do not seek our thanks, but we owe them a profound debt of gratitude.
It would be a great mistake for calmness to give way to complacency, as serious plots are thwarted with alarming regularity. Before I came to this place, I was part of the team that prosecuted five young British jihadis who had travelled from Birmingham to Dewsbury intending to detonate an improvised explosive device filled with nails at a public rally. Had the plot succeeded, the potential for carnage would have been horrifying, and I have no doubt that we would be experiencing the repercussions today.
In my experience, the people in the intelligence agencies I have met, both as a barrister prosecuting terrorism offences and since my election, are scrupulous about remaining within the law. That means we have a covenant with them. We must provide them with a piece of legislation that gives them the tools to keep us safe, but we also owe it to them to create a framework containing the safeguards needed to command public confidence—nothing less than that will do. I believe that this Bill gets that balance broadly right and it deserves a Second Reading. That judgment has been possible because the Government have listened carefully and responded in appropriate detail to the legitimate concerns raised by the Joint Committee on the Draft Investigatory Powers Bill, the Intelligence and Security Committee and the Science and Technology Committee. However, valid points have been raised today, for example on whether we ought further to limit the pool of agencies to which ICRs can be available, and on the threshold for the type and seriousness of criminality that ought to trigger their use. Those legitimate points have been properly raised, but they can be raised in Committee.
I do not have the time to examine more than a fraction of what this Bill contains, but I wish to say a few words about bulk powers. The bulk data powers in the Bill are not new. The law today has long allowed the security and intelligence agencies to acquire bulk data under RIPA and so on. Those powers underpin a significant proportion of what our security services already do.
Joanna Cherry
Does the hon. Gentleman accept that at the time the Act he has just mentioned was passed, bulk powers were not in people’s contemplation? Therefore, although that Act may have been retrospectively interpreted to cover bulk powers, they have never before been debated or voted on by this House.
Alex Chalk
The hon. and learned Lady is absolutely right about that, but what is important about this Bill is that it shines a light on precisely those powers: it clarifies and consolidates them; it unifies them into a single document; and, crucially, it strengthens the safeguards that govern the security and intelligence agencies’ use of them. That is precisely why this legislation is so important. Crucially, in future, warrants for bulk powers will need to be authorised by a Secretary of State and approved by a judicial commissioner, which means we can be satisfied that those powers will be issued only where it is both necessary and proportionate to do so. Each warrant must be clearly justified and balance intrusions into privacy against the expected intelligence benefits.
There is so much to say, but time is limited. The upshot is that this Bill is not the finished article, but it forms the basis of a strong piece of law. I believe it can have as positive an impact as the Police and Criminal Evidence Act 1984, by updating and clarifying the law for those having to apply the relevant powers, while strengthening safeguards for those who are subject to them. If we get the detail right, I believe this Bill has the potential to become world-leading legislation. We should give this Bill a Second Reading.