Investigatory Powers Bill (First sitting)
John Hayes Excerpts(10 years ago)
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Joanna Cherry
Q Do you agree that in the investigation of threats to national security and terrorism there can really be no justification for scooping up personal data in relation to children?
David Anderson: I am going to duck that one because bulk personal datasets were outside my remit. The use of bulk personal datasets, we now know, has been subject to annual review by the Intelligence Services Commissioner for several years. Perhaps he is the appropriate person to ask about that.
The Minister for Security (Mr John Hayes)
Q Thank you for coming, David. On bulk personal datasets, I note that you say that the members of the intelligence community that you have met, and what you have seen and heard from them, have confirmed the view that was expressed by the ISC and others. Are you clear about their efficacy and utility?
David Anderson: I think what I said was that bulk personal datasets had been looked at by the Intelligence and Security Committee and by the Intelligence Services Commissioner. I have read what they have said about that, including in closed hearings, and I said that what I was shown by the agencies was consistent with that, but I was not trying to do the same exercise that they had done of deciding whether these things were necessary or proportionate.
Mr Hayes
Q As a follow up on that, obviously you appreciate that your recommendations on the operational case being made have been built in to what we are doing. Further to what you said about the Chairman of the ISC’s recognition of their proportionality and necessity, I suppose you would accept that any publication of that operational case will obviously be limited, because it is an operational case and as soon as you make it public to the point where it ceases to have value, it could compromise operations.
David Anderson: Yes, the agencies’ ability to protect us relies quite heavily on people not knowing exactly what it is they can and cannot do.
Victoria Atkins (Louth and Horncastle) (Con)
Q I will ask just a couple of questions, if I may, Mr Anderson. Looking at the operational case for bulk powers, the Home Office has stated:
“There is clear evidence that these capabilities have…played a significant part in every major counter terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since November 2014...enabled over 90% of the UK’s targeted military operations during the campaign in the south of Afghanistan…been essential to identifying 95% of the cyber-attacks on people and businesses in the UK discovered by the security and intelligence agencies over the last six months”.
They have also been of great use in serious organised crime and paedophilia investigations, as we know. Are those factors that you and others have taken into account when assessing whether we need bulk powers, and how critical they are to national security and serious organised crime investigations?
David Anderson: I saw and heard enough to persuade myself of the necessity of bulk interception powers and bulk data retention of the type we were describing—phone logs and emails and so on. I did not look at equipment interference, for example, because that was outside my remit, and the query that I raised on that earlier was really the same query that the Intelligence and Security Committee has raised. If you define the targeted powers so broadly as to encompass almost anything, what is the additional utility of a bulk power? I am not persuaded on that simply because I did not do the exercise.
Mr Hayes
Q On Second Reading, Mr Starmer said that you do not know that someone is a suspect until they are a suspect and that at that point you need to know who they are speaking to. The filtering process that you described in your earlier remarks is about taking very large amounts of data and, through that filter, in the end dealing with very small amounts. We have heard a lot of concerns and paranoia about bulk powers. Would it be fair to say that that filtering process is as much about excluding people as it is about including them?
Lord Evans: It is essentially about that. The purpose of the whole machinery is to put the surveillance on people who are actually a direct threat to our national security. You do not want anybody else in the system. You need to get everybody else out of the way as early as possible; otherwise you will get distracted by things that are a waste of resources. That puts you in a very vulnerable position, of course, because something will go wrong. Yes, you are quite right that we are trying to clear away all the things that are not relevant so that you can focus down on to what is relevant.
Mr Hayes
Q Another of Mr Starmer’s arguments was on equipment interference. Does equipment interference become more important as, for example, encryption makes other means by which you would get to the same destination more difficult?
Lord Evans: I am not a siginter so I would find that slightly difficult to know. The fact that we have a multiplicity of devices that any individual will be operating on at any one time means that selecting out those that are really significant becomes a more and more important process. That is certainly the case and I suspect that is part of that bulk process. Because these are overseas powers, this is fundamentally a sigint issue. Therefore I do not feel fully able to answer your question.
Investigatory Powers Bill (Second sitting)
John Hayes Excerpts(10 years ago)
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Joanna Cherry
Q Do you agree that we cannot compare what is proposed in the Bill with what was proposed in Denmark until you have got an agreed specification with the Home Office?
Mark Hughes: A pamphlet has been issued and we have been in discussion with the Home Office as recently as the last couple of days about this. More clarity is required, but broadly speaking there is a definition in the Bill, there are purposes in the Bill and we understand that there are options technically around it. We have been working that through with them, but yes we would like clarity as soon as we can.
The Minister for Security (Mr John Hayes)
Q Thank you, Mr Hughes, for coming, and thank you also for acknowledging the extent of the consultation with which you have been engaged with the Home Office. As a result of that, you will know that the codes of practice published at the time of the Bill reflect some of the arguments you have advanced previously and clarify some requirements.
Today you emphasised that as we move forward there will be ongoing discussion. How important do you therefore think it is to avoid rigidity by putting more on the face of the Bill rather than including that in codes of practice and in the ongoing discussions you described?
Mark Hughes: It is very important that we have words and definitions on the face of the Bill to deal with the really substantive points as far as this type of legislation is concerned—namely the level of intrusiveness, which is clearly where definitions help. A definition is only really a way of helping to establish the level of intrusiveness of the power that is being put in place.
There are needs to have something. One need, which I have said, is about ensuring that there is clarity around 100% cost recovery, for example. There is definitely a need for that and with 268 pages there is quite a lot in there. However, we also recognise that as technology changes—our world is an ever-changing one as we know, and that is the case specifically in our industry—there is need for flexibility of a discussion point around how consultation happens and how that manifests itself in a legal instrument for us to retain and disclose either content or other types of communication data.
It is a difficult balance to be had. I think there is a lot at the moment in the Bill that is very useful. There are purpose limitations, for example, which are very useful for us, as are, as I said already, the definitions.
The other point is that there does need to be flexibility in future about understanding how the new codes of practice will be formulated based on what was required, and the Bill is clear that the correct oversight is in place. That is a difference from the extant legislation. The consultation process is different from others there have been in the past, and we welcome that.
Mr Hayes
Q Presumably you also welcome the right to review a technical capability notice and the commitment that there will be further discussion with you before you are obliged to meet obligations.
Mark Hughes: Yes, indeed, and not only that, but there is now on the face of the Bill a right of appeal to the Home Secretary if a notice is issued to us and we disagree with it. That has not existed in the past. In the past, under other legislation, we have had occasion to make representation, but it is much clearer in this Bill than it has been in the past.
Christian Matheson
Q Under the terms of the Bill, you are being asked to collect a large amount of data, some of which will be quite personal and some private. How confident are you of BT’s capability in terms of maintaining the security of those data from hacking or theft, particularly bearing in mind the fact that other communications service providers have been hacked into? When you consider the rest of the industry more broadly—without naming names—do you think BT is in a stronger position than other CSPs to maintain security against hacking or theft where there might be vulnerabilities elsewhere?
Mark Hughes: The security of any data we hold and retain is clearly a matter that we take extremely seriously. That is of the utmost seriousness for our organisation for any type of data. The type of data that the Bill refers to specifically is, though, perhaps different from other types of data that need to be interfacing the public on a bigger scale, for example. This is not that type of data; it is going to be restricted and allowed to be viewed by only very few individuals who have the correct authority to be able to get to the data when they need to.
The level of security applied to this type of data is clearly factored into the type of data that is being retained, so we have to put very significant security measures around it to ensure that the access is controlled properly and that the data are very secure when stored. That absolutely has to be factored into the cost and the way we operate. It is not something new. We are currently subject to laws and regulations under which we have to make sensitive data available, so we are used to doing it, but that clearly has to be factor in for, for example, some of the new datasets we are potentially going to be asked to retain under the Bill.
Joanna Cherry
That is an internal guarantee that you are giving us. There is nothing in the Bill to say that it would not be accessed, is there?
Richard Berry: Not that I have seen, no.
Mr Hayes
Q I will be mercifully brief. Given your very wide case experience, and the fact that an overwhelming number of serious crimes are now connected with both the technology and methods of modern media, can you envisage circumstances in which loss of life or severe injury might be prevented through equipment interference?
Chris Farrimond: Absolutely, yes.
Mr Hayes
Q That is something the Joint Committee recommended and now forms part of the Bill. On internet connection records, can you give us a flavour, also from your case experience, of the kinds of crimes and circumstances in which they might be vital to an investigation and, ultimately, to catching and convicting people involved in serious crime?
Chris Farrimond: Let us just start with the fact that internet connection records are the new comms data; they are the modern equivalent of comms data, the normal itemised billing that we have had for years and years. Criminals are using internet communications even if they do not necessarily realise it—when they send an iMessage, for instance, in an internet communication, rather than a text message. That is happening the whole time, and it is happening right across the population, whether people are law-abiding or criminal, so internet connection records now feature in every type of criminality. They are featuring more in those types of crime where the internet plays a larger part—fraud, for instance. I can talk about child sexual exploitation, where the internet makes it so much easier to share images, so internet connection records would be extremely useful for us in those circumstances.
Simon Grunwell: HMRC’s business model going forward is to put more and more services online to enable taxpayers to do more themselves, a bit like an online bank account. We already have online frauds. We are quite attractive for fraudsters, in the sense that we collect £500 billion a year and we pay out £40 billion in benefits and credits. Comms data helps us directly prevent the loss of £2 billion in revenue. On the ICR point, in particular, we have already had online attacks against us. In one case alone we were able to prevent the loss of £100 million. ICRs can only help us in that regard.
Richard Berry: From a local policing point of view, it is not just about serious crime; it is also about—if I can use this phrase—policing the digital high street. So ICRs could be just as relevant for cases such as domestic abuse, stalking and harassment, to prove a particular case, or to help us deal with what might seem, in isolation, to be a minor issue, but can often be on a path of escalation to homicide or very serious assault.
The Solicitor General
Q You were just asked about anonymity and the perceived danger to anonymity—for example, in the Crimestoppers scenario—but that would apply if I telephoned Crimestoppers now, wouldn’t it?
Chris Farrimond: It would.
Joanna Cherry
Q That was not really my question. My question was on whether you agree that the individual’s right to privacy justifies the time that is sometimes taken in inputting for a judicial approval.
Mark Astley: I understand the need for respect for privacy, but the necessity and proportionality aspect of every case will be considered, and if it is appropriate to do so, we would need to intrude on that privacy.
Mr Hayes
Q Obviously, your role is an additional safeguard. There are those who think that the Home Secretary and I are preoccupied with safeguards, checks and balances and the defence of privacy, but I think we have probably got this right. Can you tell me of the number—the frequency—of requests that you would consider to be an abuse of power in respect of applications for information? How often do you come across seedy requests that you would consider to be an abuse of the powers?
Mark Astley: In 2% of inquiries in the past two years, we have had applications rejected or cancelled through the input of our accredited SPOCs.
Mr Hayes
Q Is that common?
Mark Astley: It is actually going down because of the training and the accreditation that is provided by our staff—the figure has reduced every year—so that people are fully aware, fully trained and fully focused on what is appropriate, what is necessary and what is lawful.
The Chair
Actually, on this occasion I did not ask you to be brief, but thank you for being brief in the spirit that that was offered.
Joanna Cherry
Q At point 6 of your written evidence you expressed concern that in the draft Bill there were
“a number of clauses which provide exceptions for national security or which exempt the intelligence agencies from key safeguards”.
What is your view of the finalised Bill in relation to that concern?
Jo Cavan: Essentially there has been progress on one of the national security exemptions, which is around the acquisition of communications data to determine journalistic sources. The Government have amended clause 68 to remove the national security intelligence agency exemption. That was because that was picked up by the Intelligence and Security Committee and the Joint Committee.
However, there are still two broad exceptions in the Bill: clauses 54 and 67. One of them is really important, because it is around the independence of designated persons. This area was strengthened as a result of the Digital Rights Ireland case, and that is an area where we still find significant compliance issues within public authorities. Communications data is approved by designated persons—it will become designated senior officers in the Bill—who are from the same public authority. In almost half of the police forces, intelligence agencies and other bodies that we inspected last year, we made recommendations around that area because we were not satisfied with the independence.
The clauses as drafted seem to drive a horse and cart through the independence requirements for designated persons by exempting very broadly national security. The same is the case in the single point of contact provision in clause 67: that appears to exempt in national security cases the SPOC being consulted, and we see the SPOC as a key safeguard in the process. So the fact that the Government have already said that the exemption relating to journalistic sources was broad, and removed it, suggests that the same needs to happen to clauses 54 and 67.
Sir Stanley Burnton: I would just like to add that it is far from obvious that the interests of national security, which is a ground for the grant of a warrant, is itself an exceptional circumstance. It is very difficult to see what the logic behind that formulation is.
Mr Hayes
Q Good. How often have you encountered a Bill that before its publication in draft had been preceded by three reports, and which was subsequently considered by three Committees of the House before embarking on the normal process of scrutiny? Can you think of another Bill in the last 10 years like that? How many can you list?
Jo Cavan: I am afraid I cannot think of any off the top of my head, but I will say the reviews—
Mr Hayes
Q You said it had been hurried; that is what I was trying to get at.
Jo Cavan: Yes, absolutely. The reviews were comprehensive in their own right. However, the three reviews that you talk about were specifically focused on certain areas. David Anderson was specifically focused around interception and communications data, so he did not look at equipment interference, for example. Some of the capabilities had not been avowed at that stage, so they are seen for the first time in the Bill. I think it is a challenging timeline, and a number of the witnesses have talked about their concerns.
Mr Hayes
Q But I just wanted to establish, just to be clear, that in my 20 years I cannot think of a Bill that has had quite such extended scrutiny. I am sure there must be some, but they do not spring to my mind and they clearly do not spring to yours, either.
Jo Cavan: No, that is right.
Mr Hayes
Q On a second point of fact, you talked about the number of cases in which judicial approval is involved. That is the double lock. The double lock applies where a Minister—the Secretary of State for Northern Ireland, the Foreign Secretary or the Home Secretary—issues a warrant. The double lock applies where one of those people is involved. That is right, is it not?
Jo Cavan: That is right.
Mr Hayes
Q You would hardly expect the second part of the lock to apply where a Minister is not involved, would you?
Jo Cavan: The figures from last year that were published by all three commissioner bodies show that only about 7,000 out of 290,000 applications actually have judicial approval.
Mr Hayes
Q On a separate point, it has been said that the judicial commissioner—this is a question for any of you, but I am thinking of the two gentlemen in the middle in particular—will not be sufficiently independent, and that they will be deferential towards the politicians involved. Is that your view? Are they likely to be deferential, or are they likely to act independently?
Lord Judge: I think you should ask the last 10 Secretaries of State whether they had an easy time when judges have had to consider whether they are acting lawfully. You will find, I suspect, that many of them feel fairly scarred by the experience. There is no danger whatever.
Mr Hayes
Q I have known a number of Home Secretaries, and none of them has suggested that the judiciary is deferential. I take your point. Finally, in terms of the appointment of the judicial commissioners, would the Judicial Appointments Commission be a better place to appoint them, or do you rather like the model we have come up with?
Lord Judge: No, I much prefer the model you have come up with. The Judicial Appointment Commission appoints judges usually from people who have not been judges. This is an appointment system that will work for people who have already been through the process, have acted as judges, have been appointed at whatever level they have eventually ended up, and are then exercising a new function. There is no point whatever in involving the Judicial Appointments Commission, ignoring the fact that it has got far too much to do anyway and not enough people to do the work.
My concern about the appointments is the speed with which all this is going to happen. We are going to have, under clause 233(3), a new investigatory powers commissioner within two months of the Bill becoming an Act. Where is this wonderful individual, male or female, going to come from within two months? The processes of appointments that I have had anything to do with take a very long time. I announced my retirement in November 2011 to be replaced by October 2013, and nobody knew who the next Lord Chief Justice was until the end of July. I am very worried about that. It is a very serious point. It is not a big point, but it is serious.
Peter Kyle
Q Sir Stanley, in response to Sir Keir’s question, you said that you felt that judges would be compelled to give weight to the person applying. Will judges, considering that it has been signed off by the Home Secretary, feel compelled to give weight to the fact that the Home Secretary has already authorised the warrant?
Sir Stanley Burnton: Well, you give weight to it, but you none the less look at the material to see whether she was entitled to come to the decision she came to.
Joanna Cherry
Q I was not asking about targeted interception, I was asking about the current Home Secretary’s specific avowal of that fact that for many years section 94 of the Telecommunications Act 1984 has been used to collect the phone records of everyone in Britain into a single national database. I am simply interested to know whether either of you gentlemen, as former Home Secretaries, could tell us whether you had authorised that.
Charles Clarke: No, I cannot, for the reasons I have stated.
Lord Reid: You would have to ask the Secretary of State that.
Charles Clarke: I do think that the related point is future-proofing. In an area where technological change is taking place so rapidly—where you have a state of affairs on the balance between security on the one hand and liberty on the other, and where we need to keep the capacity to surveille threats to society—how do we future-proof that? That was the issue I faced with RIPA in 1999-2000, and I think it is the issue that this Committee faces in thinking about this particular piece of legislation too.
Mr Hayes
Q I have many favourites.
The only question I really want to ask is whether you ever felt that the test of necessity and proportionality was insufficient to allow you to make a judgment of the kind you describe? You have said that you could call for more information and that you could qualify what you had on that basis, but in your judgment, did you ever, at any point, not feel confident to make a judgment on the basis of that prevailing test of necessity and proportionality?
Charles Clarke: For myself, I can recall only one case where I felt that. In that case, I decided not to authorise the warrant that I had been requested to authorise, for exactly the reason you suggested. There was an issue in my mind about whether the proportionality issues had been properly weighed up. I think that the proportionality issues were a constant theme of any of the warrants that were sent. You had to try to make a judgment.
I cannot recall whether there were specific guidelines on this, but when I first became Home Secretary I certainly had a couple of briefing meetings about the issues in general—not about particular warrants—to try to go through some of the principles that applied. I am sure other colleagues did much the same. I do not recall a written-down document that tried to explain the proportionality judgment in general, because obviously in reality you are always making the proportionality judgment in particular cases. My approach was that if I did not feel it was satisfactory, I would not agree the warrant.
Lord Reid: I take it that you are asking, “Were there occasions on which you refused a warrant because you didn’t think it was either proportionate, sufficient or necessary?”
Mr Hayes
Q Yes. Obviously you know, as you are very familiar with it, that that is the kind of baseline requirement. I presume that the case that was made to you was mindful of that requirement and that, for the most part, you felt it met the requirement. I just wanted confirmation of that.
Lord Reid: To give you a straight answer, yes. When I was Home Secretary, I refused a warrant. On other occasions, I refused to renew a warrant. I cannot remember specific cases in Northern Ireland, but I did it there as well. In the first instance, when a warrant is put to you, you are exercising a degree of judgment. And very often you are exercising a judgment based on other people’s judgment, and their judgment is often based on fragmentary evidence. That is the problem with all intelligence, as we know to our cost in some cases. You exercise a judgment, and that judgment is hopefully exercised diligently on the criteria: “Is this proportionate? Is it necessary? Is it reasonable? What is being asked here?” There were occasions on which the answer was no. Before you said no, the normal process would be to call in the various officials—the people who put the submission to you—if necessary, and to go through it orally and ask them questions. The answer to your question of whether I ever refused a warrant is yes.
Byron Davies
Q You have answered the main question I was going to ask, but this is carrying on from that. Times have moved on since your days in the Home Office in terms of technology, with smartphones, et cetera. If you were sat in the Home Office now, would you be looking at introducing this Bill?
Lord Reid: I don’t think it is entirely up to the Home Secretary to introduce it. There are two countervailing pressures. One is the development of cyber, which is something that, having stepped down from the Cabinet, I have voluntarily spent a lot of time working on. By the time you get this Bill through, in whatever form, we will no doubt be faced with artificial intelligence and a whole new era of communication. Yes, it would be necessary to take into account the changes, as I was saying to Ms Cherry earlier, in the world of cyber, and particularly the global nature of communications.
Secondly, there are undoubted pressures from the other end, not just the wish from the intelligence services and the policing side. I don’t think their motives and objectives have changed; what has changed is the world around them. Therefore, to meet the same objectives, they have to employ different methods on the old principles. However, at the same time, I am well aware that there has been widespread—“discussion” is a very light word—controversy about access to people’s information. Sometimes it is a paradox, because people are willing to supply all sorts of information to all sorts of private companies. That information is not only being put in a databank but is being mined, matched, sold and used for commercial reasons. Nevertheless, whatever the paradox, the concern is there, and I think the Bill tries to meet the needs of addressing technological change on the side of security at the same time as giving the reassurances necessary because of the public’s concerns about the new world in which we live and about intervention into it. That is against a background where, as the Committee will know, one of the constant characteristics of the world of cyber and communications is constant entrepreneurial innovation by black hats and white hats. It is literally changing every day. Therefore, the equivalent of today’s microdot, where we used to put secret messages, can be a webpage—an apparently innocent webpage that can be sending all sorts of instructions, propaganda or whatever. There are very bright people in both the black hats and the white hats who are constantly inventing things, vis-à-vis each other.
Investigatory Powers Bill
John Hayes Excerpts(10 years ago)
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Stella Creasy
I am not quite sure about the hon. Gentleman’s point because no one is suggesting that we would not want to access such information. My point is that, from a technical perspective, separating contact data from content data is much more difficult than the Home Secretary suggests. That means that we need more honesty about the powers we are proposing that our police and investigatory authorities should have.
For example, if someone can get information about my use of an electricity meter, they might want to look at the contact between me and that meter. If I were accessing it a lot, they might wonder what I was doing in my home that required so much heat. Drug enforcement agencies might look at such contact patterns, and inevitably that brings with it content about what someone is doing. That does not mean that we do not need methods to access that information; it means that one thing missing from this debate to date is an honesty about the technological complications that will come with this Bill, and we must address those concerns.
The Minister for Security (Mr John Hayes)
Perhaps I can reassure the hon. Lady. The Home Secretary emphasised that we continue to have discussions with the providers for exactly the reasons she has described. It is essential that they can do what we oblige them to do, and we are determined to put those mechanisms in place. The right hon. Member for Sheffield, Hallam (Mr Clegg) gave the game away because he said that repeatedly, over time, security services and the police have requested the ability to carry out such work, for the simple reason that they need to do that in order to protect us all.
Stella Creasy
I am grateful to the Minister for acknowledging that the idea that one can always separate contact from content data is not viable. We need a much more honest debate about who will be able to access that information and under what circumstances. I hope that that will be discussed in Committee, because as the Bill is currently drafted, we cannot justify to our constituents the fact that their content data may be accessed—however inadvertently—because of the nature of technology. We must address that.
Let me move on to the question of honesty about encryption. A lot of technology companies and the technology industry in our economy are concerned about how the Bill may affect encryption. The Bill gives the Secretary of State the power to serve technical capability notices, and to require companies to remove their electronic protection. Again, it is not yet clear what that means, what protection exists in terms of encryption technologies, and what that might mean for other consumers of services. That is a real concern for many.
We know that encryption is a vital part of security for services. Constituents will mention Ashley Madison and TalkTalk, or they may be aware of hospitals that did not have security measures in place and had their systems hacked. We are talking about whether the Government will require those companies to bring in those backdoor opportunities for accessing information. We need much stronger scrutiny of the Bill and of what the encryption process means, not least because removing some of the encryption requirements would create a security risk. The Government are making that choice in return for the ability to do some of the things they are talking about doing, and we need to be honest with the public about that.
There is also a question relating to the security of data. In 2009, the Conservatives made great play of turning back the “surveillance state”, but it seems to me that they are seeking to privatise the databases they told us they did not want to see developed. The Bill asks companies to hold the data, but the security of that data is not clear. We know that having to hold everybody’s internet records for a whole year will be a honeypot to hackers. That will be a massive security risk unless security processes are in place—even if data are held by private companies. The fact that the Government have not clarified who will pay for that security, what a reasonable cost is and how to resolve disputes about what a reasonable cost will be, leaves open a gap that not just hackers but consumers will be deeply interested in. The Government must be much clearer about how they will make sure they protect consumers from having their information hacked as a result of requiring companies to gather data.
There are similar concerns about bulk interference and encryption data, but my central point is this: there are questions about the proportionality and the judicial extent of the Bill and working overseas, but there are also concerns about technology. We have to be able to answer questions on all three issues to be satisfied that the Bill is appropriate for the 21st century. I hope those issues will be addressed by amendments in Committee. I believe that many members of the Science and Technology Committee share concerns about whether our technology industry is comfortable with the proposed legislation.
For the Government to fail to act on any one of those questions will compromise the others. If we do not get the technology right and do not work with our overseas partners, we will not keep anybody safe. We could, in fact, create more problems. I hope Ministers will listen to those concerns and I hope they will recognise the spirit of what they said in 2009 about the importance of rolling back the surveillance state. I also hope they will be digital natives, not digital refugees. I will not support the Bill on Third Reading if they do not change it.
Prevention and Suppression of Terrorism
John Hayes Excerpts(10 years ago)
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The Minister for Security (Mr John Hayes)
I beg to move,
That the draft Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2016, which was laid before this House on 22 February, be approved.
I am extremely grateful to you, Mr Speaker. Alluring though the prospect might be, and as you know, it is not my habit to disappoint the House or to abbreviate my remarks when further articulation of an argument is necessary—[Interruption.]
Mr Speaker
Order. I appreciate that Members are leaving the Chamber, but it would be appreciated if they could do so quickly and quietly. I am sure that the substantial numbers of Members who are staying will want to savour the speech by the Minister. At any rate, he deserves an attentive audience. Indeed, I am sure that he expects nothing less.
Mr Hayes
With your encouragement, Mr Speaker, I repeat that it is not my habit to disappoint the House or to be constrained by facts, believing as I do that it is a journey beyond the given in which men and women shine and soar. Nevertheless, I will be brief and factual tonight.
The International Sikh Youth Federation, a separatist movement committed to the creation of Khalistan, an independent Sikh state in the Punjab region of south Asia, was established in the 1980s. In the past, the ISYF’s attacks included assassinations, bombings and kidnappings, mainly directed against Indian officials and interests. The ISYF has been proscribed as a terrorist organisation in the UK since March 2001. The decision to proscribe the ISYF was taken after extensive consideration and in the light of a full assessment of available information and at that time, as is necessary, was approved by Parliament. It is clear that the ISYF was certainly concerned with terrorism at that time.
Having reviewed, with other countries, what information is available about the current activities of the ISYF and after careful and appropriate consideration, the Home Secretary concluded that there is not sufficient evidence to support a reasonable belief that the ISYF is currently concerned with terrorism, as defined by section 3(5) of the Terrorism Act 2000. Under section 3 of the Act, the Home Secretary has the power to remove an organisation from the list of proscribed organisations if she believes that it no longer meets the statutory test for proscription. Accordingly, the Home Secretary has brought forward this draft order, which, if approved, will mean that being a member of or providing support to this organisation will cease to be a criminal offence on the day on which the order comes into force. The decision to de-proscribe the ISYF was taken after extensive consideration and in the light of a full assessment of all the available information. The House will naturally understand that it would not be appropriate for me to discuss the specific intelligence that informed the decision-making process.
The House would also expect me to make it clear that the Government do not condone any terrorist activity or terrorism apologists. De-proscription of a proscribed group should not be interpreted as condoning the previous activities of the group. As I said, the decision to proscribe was taken on the basis of the information available then, and we take this decision on the basis of up-to-date information. Groups that do not meet the threshold for proscription are not free to spread hatred, fund terrorist activity or incite violence as they please.
Andy Burnham (Leigh) (Lab)
I am grateful to the Minister for giving way, but some of the things that he has said tonight will be disputed by some in the Sikh community. I do not want to get into a debate about the organisation’s history, but the strong feeling in the Sikh community is that some decisions were based on diplomatic pressure from the Indian Government, rather than on the direct evidence of terrorism that he describes. I am not proving the case one way or the other, but can the Minister say without any contradiction that diplomatic pressure did not lead to the ban being maintained for so long?
Mr Hayes
I can say without equivocation, hesitation or obfuscation that a ban can apply only if there is compelling evidence to support it. Indeed, were there to be continuing compelling evidence, the ban would remain in place. When matters were reconsidered, it was clear that we could not make such a ban stand up against the criteria, which are appropriately tough, so we brought forward the draft order that we are briefly debating tonight. Pressure was certainly not put on me. Indeed, I received no overtures of the kind that the right hon. Gentleman described. Had I done so, I can absolutely assure him that my decision-making would not have been affected in any way.
Andy Burnham
I am grateful to the Minister for giving way again and I appreciate that he wants to get through his speech, but these are matters of great concern to many in the British Sikh community, so they will want to hear further answers from the Minister. He says that the Government changed their mind when the evidence was reconsidered, but that was only after they were taken all the way to the High Court and had resisted representatives of the Sikh community at every single stage. The Minister needs to remove any suggestion that the ban has been maintained for so long because of pressure from the Indian Government.
Mr Hayes
I did say, “without equivocation, hesitation or obfuscation.” I do not know how I could put it more clearly that no such representations influenced any decision I made on these matters. Let me see whether I can create a synthesis between our positions, as I do appreciate that there are strong feelings about this matter.
When proscription is put in place, it is done with the utmost seriousness, as these are serious matters. Banning the membership of any organisation in a free society is a very serious business indeed. Consequently, lifting such a proscription is also a serious matter, and it warrants the kind of consideration that has been given. The fact that these matters have to be brought to this Chamber at both stages is indicative of that seriousness. As the right hon. Gentleman knows, the threshold for proscription is common to both stages and applied under Governments of different colours—this was in place under Labour. It has not changed, so it is not as though the goalposts have been shifted and the criteria have altered. I can also assure him that absolute consistency applies; it might be argued that there had been a change of not only approach, but of the way we measure such things, and I can assure him that that has not happened either.
Keith Vaz
I, of course, accept the Minister’s assurances that the Indian Government did not put pressure on Ministers—it would be wrong for them to have done so—as he has come to the House and said so. Will he just clarify something for me? The independent reviewer of terrorism legislation suggested that there should be an automatic trigger; once proscription is put in place, there should be a time specified that would enable the matter to be reviewed, so that organisations that are proscribed and do change would not have to wait an inordinate time—an indefinite length of time—before their proscription is reconsidered. Do the Government now support that position?
Mr Hayes
The right hon. Gentleman is right to say that the independent reviewer did make such an argument, and I was familiar with it. There has also been a continuing argument in favour of an annual check on these matters—I understand that argument and we are never a closed-minded Government, as I know he will appreciate. That is not the situation that pertains at the moment or in respect of this organisation, and one could not make the case that the shadow Home Secretary made if it were. There was no fixed time limit nor a predetermined idea that this ban would last for only a particular time and would then be lifted. This decision was therefore purely based on a re-examination of the facts, rather than on any consideration of how long the organisation had been banned or whether there should be an end point.
Keith Vaz
The shadow Home Secretary raised this point because there are members of the community who have suggested that there has been pressure put on, and that indicates the problem with an indefinite period. If it were not indefinite but was reviewable, as the independent reviewer has suggested, there would not be these suspicions that others had put pressure on Ministers. The Minister has made it clear that no pressure has been put on him, but that does not stop these rumours persisting, because we are talking about an indefinite period.
Mr Hayes
The right hon. Gentleman has a charming idealism, which I rather admire. It is idealistic to suppose that because something continues for some time there is likely to be the kind of pressure that he has described, whereas if something happened more suddenly, that pressure would not be applied. Rather, I think a fixed timetable might act as pressure valve, adding a greater degree of argument, debate and perhaps even lobbying of the kind that is being suggested. I am not sure that the length of time and the character of the overtures that might be made to Ministers can really be reconciled in the way he is describing, but, as he knows, I admire his idealism.
I say to the right hon. Gentleman and the shadow Home Secretary that the Government continue to exercise the proscription power in a proportionate manner. There has been a great deal of debate about proportionality this afternoon. In that spirit, it is important that we recognise that proscription has implications for the circumstances and entitlements of individuals and groups of individuals. It is very important that we act strictly in accordance with the law, according to those strict thresholds and proportionately.
In conclusion, we believe that it is appropriate in these circumstances to remove the ISYF from the list of proscribed organisations. I hear what the shadow Home Secretary says. These are never easy decisions, and such decisions never attract unanimity in any community, but this Government are not a Government who do what is easy—they are a Government who do what is right. We think it is right that we remove the ISYF from the list of proscribed organisations in schedule 2 to the Terrorism Act 2000. Subject to the agreement of this House and the other place, the order will come into force on 18 March.
Mr John Hayes
This short but exciting debate has fallen into three parts. First, we have had a wider debate about proscription more generally, and in particular about the process for proscribing and de-proscribing organisations. The current arrangement is, as has been said by the shadow Minister, a process of application. In this case, such an application was made and considered in the way in which I have described, which has led us to this outcome.
I am familiar with the argument that the right hon. Member for Leicester East (Keith Vaz), the Chair of the Home Affairs Committee, made about the possibility of annual reviews. That does not pertain at the moment, but I am aware that that was precisely the argument used by David Anderson, the independent reviewer. I can see the point that the right hon. Gentleman made. It is not where we are now, but I think a wider discussion about proscription might facilitate just such a conversation. That is a conversation that I am always prepared to have with him and with other hon. Members. He is right, as is the shadow Minister, to say that the seriousness of these matters means that they must be dealt with in a consistent and reasonably speedy way, as I said in my opening remarks.
To that end, I come to the second part of the trilogy, which concerns the issues raised by the hon. Member for Wolverhampton South West (Rob Marris). He dealt more particularly with the circumstances of the organisation. I am glad that he welcomed the de- proscription, as have other Members, and I know that it will be welcomed in the community. By the process I have set out, the de-proscription was completed in the timeframe he described. The application was received on 6 February 2015, as he said, but as he suggested, it was identified rather later, on 14 May, than might have been ideal. Following careful consideration by the Home Secretary, a decision to maintain the group’s proscription was made in July. However, as the shadow Minister said, a subsequent appeal was lodged with the Proscribed Organisations Appeal Commission.
In December 2015, having undertaken a further review, with all the information available—including from other countries in which the International Sikh Youth Federation is present, and about the organisation’s current activities—the Home Secretary concluded that there was not sufficient evidence reasonably to suppose that the ISYF was currently concerned in terrorism as defined by the Terrorism Act. I will not delay the House unduly, but if you will allow me to do so, Madam Deputy Speaker, I will place in the Library of the House the Act’s precise definition of terrorism. I have that definition in front of me, but it goes on at some length.
Rob Marris
Will the Minister tell the House not the content of any such new information, but whether any new information bearing on the decision in relation to proscription or de-proscription came to light between 31 July and 14 December 2015?
Mr Hayes
There was certainly further consideration, as I have made very clear, and a further up-to-date review of the organisation’s activities. Such matters are highly dynamic, as the hon. Gentleman will understand. As he says, I cannot go into the fine detail of the strategy. It is not our habit to give a running commentary on such matters, and I know he will respect that, as he said he would. It is certainly true that there was sufficient further consideration for us to conclude that we could not maintain the proscription. The Home Secretary has to consider various things—bits of information, pieces of intelligence and open source material—when determining whether a group is engaged in terrorism, as the hon. Gentleman will know. It would not be appropriate to discuss the specific material, but when I describe that variety of information, he will understand what happens when consideration is given to such matters.
The third part of our debate concerns the points made by the hon. Member for Strangford (Jim Shannon). He spoke more widely about the way in which terrorist organisations, including proscribed ones, continue to proselytise using social media. He drew attention to the information that was made available to the House. Rather than delay the House tonight, I will go the extra mile and set out, in a further note for the House, exactly what we are doing about what he described. Again, this matter is highly dynamic—it changes almost daily—and the House is warranted in asking for up-to-date information on precisely what steps we are taking to counter the activities that the hon. Gentleman set out. They are damaging and worrying, and they are very plainly part of what those who seek to do us harm are about these days: they are using every kind of method and means to proselytise their message and to radicalise people, and to do damage accordingly. I will set that out in a further note, which I will make available to the House.
Mr Hayes
By way of variety and excitement I will deal with those points in reverse order. Those organisations will be notified, and we have obviously consulted member states that have a direct interest in this group. We will inform them of the de-proscription if parliamentary agreement is secured in this House and the other place, and we will formally notify the European Council if a decision to de-proscribe the ISYF is agreed by Parliament. I will look again at the asset freeze—the hon. Lady did not use that term, but that is what it is—and return to her with a specific answer. It is a complex matter, as she implied, so I will come back to her, rather than delay the House tonight.
Rob Marris
I asked the Minister a series of questions, and I hope that he will write to me about them afterwards.
Mr Hayes
Having known me for such a long time, the hon. Gentleman will know that I would not neglect to reply to him, given that he has invited me to. I will certainly write to him with those details. Moving ahead with appropriate speed, I commend this order to the House.
Question put and agreed to,
Resolved,
That the draft Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2016, which was laid before this House on 22 February, be approved.
Points of Order
John Hayes Excerpts(10 years, 1 month ago)
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Mr Speaker
I am bound to say to the hon. Gentleman that I have received no such indication that any Minister has any such intention. The matter to which the hon. Gentleman refers is a matter of ongoing interest. He and others, who are notably terrier-like and indefatigable in pursuit of their ends, will require no encouragement from me to deploy such parliamentary devices as are available to secure the matter further attention, if that is what they want.
If there are no further points of order—the House’s palate has been satisfied on that front, at any rate for today—we can move to the presentation of a Bill.
Mr Speaker
For the benefit of those who attend to our proceedings, the convention is that a Minister nods and I note that, with some ceremony, we have received the due nod from the Minister for Security.
Bill Presented
Investigatory Powers Bill
Presentation and First Reading (Standing Order No. 57)
Secretary Theresa May, the Prime Minister, Secretary Philip Hammond, Secretary Michael Fallon, Secretary David Mundell, Secretary Theresa Villiers, the Attorney General, Robert Buckland and Mr John Hayes presented a Bill to make provision about the interception of communications, equipment interference and the acquisition and retention of communications data, bulk personal datasets and other information; to make provision about the treatment of material held as a result of such interception, equipment interference or acquisition or retention; to establish the Investigatory Powers Commissioner and other Judicial Commissioners and make provision about them and other oversight arrangements; to make further provision about investigatory powers and national security; to amend sections 3 and 5 of the Intelligence Services Act 1994; and for connected purposes.
Bill read the First time; to be read a Second time tomorrow, and to be printed (Bill 143) with explanatory notes (Bill 143-EN).
Oral Answers to Questions
John Hayes Excerpts(10 years, 1 month ago)
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Sir David Amess (Southend West) (Con)
7. What recent discussions the Government have had with banks and industry bodies on steps to reduce fraud and cybercrime.
The Minister for Security (Mr John Hayes)
Discussions with banks and industry bodies have led to the recently announced Joint Fraud Taskforce. This is the first time that banks, police and Government have joined together to ensure that the public are aware of, and protected from, fraud. The taskforce’s mission is to counter the wicked work of fraudsters.
Sir David Amess
While I absolutely understand the difficulties in effectively policing the internet, financial scams—judging by my own parliamentary account—seem to be completely out of control, and the most vulnerable people are being targeted. Will my right hon. Friend therefore have another look at this issue to see whether there is some way we can bring these criminals to account?
Mr Hayes
Because we have taken a fresh look at this, as my hon. Friend recommends, we have launched the joint taskforce; we are continuing to support the Cyber Streetwise campaign, which makes people more aware of, and therefore more guarded about, fraud; and we invested £90 million on cyber-security in the previous Parliament and will invest £1.9 billion over the next five years. We take this seriously, not least, Mr Speaker, because, as you know, in the cyber-age I am a cyber-Minister—up to the minute, up to the mark and up to the job.
Keith Vaz (Leicester East) (Lab)
Since the cyber-Minister is up to the mark, may I ask him about the activities of a website called Bestvalid, which was discovered recently selling the stolen bank details of 100,000 British citizens? Can he explain, as an up-to-the-minute cyber-Minister, how it was possible for this website to carry on for six months before being closed down, and how much of the £1.9 billion that he is targeting on cybercrime will be used proactively to close down sites of this kind?
Mr Hayes
The right hon. Gentleman knows, because his Select Committee has drawn attention to this in the past, that it is critically important that the Government work with all other agencies, including banks and private sector organisations, and the taskforce will be missioned to do that. It may be worth saying that this is summed up by the fact that the National Police Chiefs Council has publicly signed up to
“commit our full support to the objectives and actions of the…Taskforce”
to
“work in partnership to…protect the public from becoming victims of fraud and fraud scams, maximising opportunities to stop fraudsters from operating”,
in exactly the way he recommends.
Jack Dromey (Birmingham, Erdington) (Lab)
The cyber-Minister will know that people are more likely to be mugged online than in the street, with serious consequences for victims. After five years of the Government saying, “We cut police but we have cut crime”, will he confirm that, when 6 million cybercrimes are included in the statistics, the truth will be told that far from falling, crime is changing, and that our country now faces crime doubling just as this Government continue to cut the number of police officers?
Mr Hayes
The hon. Gentleman will be disappointed that I am going to say that he is right to draw attention to the scale of this problem. I remind him that we were the Government who made the decision to publish these statistics and to designate cybercrime in the way that we have, because until we appreciate the scale of the problem, we will not develop the solutions necessary to deal with it. As he will know, we are using some of the extra resource to set up the national cyber centre to co-ordinate work in this area.
Mr Graham Allen (Nottingham North) (Lab)
8. What steps she is taking to encourage police and crime commissioners to support early intervention programmes; and if she will make a statement.
Ben Howlett (Bath) (Con)
15. What assessment the Government has made of the effectiveness of steps to tackle Daesh propaganda.
The Minister for Security (Mr John Hayes)
The Government are removing more than 4,000 pieces of terrorist-related content a month. We are also supporting community-based initiatives that provide credible, positive alternatives and challenge Daesh’s core communications. Those campaigns have generated online viewings of more than 15 million.
Ben Howlett
Daesh commits atrocities every day against Christians, gay people and others who do not agree with its way of life. What are the Government doing to communicate accurately those atrocities across the UK to prevent the spread of extremism, particularly among young people?
Mr Hayes
My hon. Friend is right. Yeats said:
“All empty souls tend toward extreme opinions.”
We have to challenge those extreme opinions at every turn. The UK Government’s “UK Against Daesh” Twitter channel highlights the hypocrisies, hyperbole and wicked calumnies of Daesh. We work with the community organisations that I described a moment ago, and 130 community-based projects were delivered in 2015, reaching 25,000 people. More than half those projects were delivered in schools and aimed at the young people whom we need to safeguard.
Proceeds of Crime
John Hayes Excerpts(10 years, 2 months ago)
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The Minister for Security (Mr John Hayes)
I beg to move,
That the draft Proceeds of Crime Act 2002 (Investigative Powers of Prosecutors: Code of Practice) (England and Wales and Northern Ireland) Order 2016, which was laid before this House on 17 December 2015, be approved.
Mr Speaker
With this, we shall consider:
That the draft Proceeds of Crime Act 2002 (Cash Searches: Code of Practice) Order 2016, which was laid before this House on 16 December 2015, be approved.
That the draft Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) (England and Wales) (No. 2) Order 2016, which was laid before this House on 16 December 2015, be approved.
That the draft Proceeds of Crime Act 2002 (Search, Seizure and Detention of Property: Code of Practice) (Northern Ireland) Order 2016, which was laid before this House on 16 December 2015, be approved.
That the draft Proceeds of Crime Act 2002 (Investigations: Code of Practice) (England and Wales and Northern Ireland) Order 2016, which was laid before this House on 16 December 2015, be approved.
Mr Hayes
I am grateful, as ever, Mr Speaker, for your stewardship and indulgence.
The important matters before us are technical and, I anticipate, relatively uncontroversial; they are certainly not partisan. Nevertheless, it is important that we scrutinise them with the diligence for which this House is rightly famed, and I will be happy to deal with any amount of detail with which the House wishes me to engage.
Isaiah Berlin once said:
“Freedom for the wolves has often meant death to the sheep.”
As someone who believes in standing fierce in defence of the gentle, I know exactly what he meant. It may be of some assurance and comfort to the House that the matters under debate relate to the Proceeds of Crime Act 2002 and were largely commenced in England and Wales on 1 June 2015. In order to extend that commencement, as is necessary, to Scotland and Northern Ireland, we are required to make codes of practice that encompass those jurisdictions and bodies using the powers there. So, the codes will largely replicate those that were considered and approved by this House, which is why I described them as technical and largely uncontroversial.
The codes are a safeguard to ensure effective and consistent use of the powers. Once commenced, the new powers will give officers important new tools for the recovery of criminally obtained assets. That is a key pledge of our serious and organised crime strategy and the Government’s commitment to tackling all levels of crime.
The codes build on previous codes. They closely follow those issued more widely to police officers under the Police and Criminal Evidence Act 1984. The codes provide an important safeguard and ensure that the powers are used in a targeted, consistent and effective way, thus providing vital reassurance to the public that the powers in the 2002 Act are being used appropriately and proportionately.
The orders bring into force a number of codes of practice that provide guidance on the use of various powers under the 2002 Act. Four current codes need updating and a new code is required as a consequence of amendments made to the 2002 Act by primary legislation already passed by this House. I draw Members’ attention to the Policing and Crime Act 2009, the Crime and Courts Act 2013 and the Serious Crime Act 2015.
We plan to commence those powers relating to the 2002 Act throughout the UK on 1 March, in so far as they are not already in force. To achieve that, we need to issue the codes of practice that will provide guidance on the use of the powers throughout the UK. The Scottish Parliament and the Northern Ireland Assembly will consider codes that fall within their competence due to devolution.
Some might think that it would be enough for me just to put those technical matters on the record, but knowing this House as you and I do, Mr Speaker, I know that it will want me to say a little more about the amendments to the 2002 Act, which require the codes of practice providing guidance—
Mr Speaker
Order. As the Minister of State has already prayed in aid Isaiah Berlin, I had supposed that it would be only a matter of time before he would refer, in an orderly way, of course, to “Four Essays on Liberty”, but perhaps I am being impatient and that will be reached in the course of the right hon. Gentleman’s peroration. We wait to see.
Mr Hayes
Mr Speaker, you are encouraging me to stray from the subject at hand, but I will just say this: in a frail and fallen world, liberty has to be handled with great caution, and I have neither the time nor the expertise to delve into those matters at sufficient depth to satisfy you, Sir, or the House as a whole.
I will therefore restrict my remarks to the matters before us and deal briefly with the areas to which the codes of practice relate, namely the power to allow search of vehicles for criminal cash; search and seizure powers to prevent the dissipation of property that may subsequently be used to satisfy a confiscation order; expanded confiscation investigation powers to allow the tracing and identification of assets following a confiscation order; expanded civil recovery investigation powers; and change of court jurisdiction so that the Crown Court rather than the High Court will make investigation orders in relation to cash forfeiture cases.
As you will understand, Mr Speaker, we are not debating the powers themselves, because they have already been approved by the House, as I have described. Importantly, however, we are considering the codes that provide guidance on the use of the powers. This is essentially about the consideration of appropriate safeguards. Such safeguards are required under the 2002 Act in investigations by law enforcement officers. There is a final further code that relates to the use of the investigation powers by prosecutors, and owing to amendments made to the powers new codes are needed to address the new provisions.
The orders will bring all the relevant codes of practice into effect, ensuring that effective safeguards and up-to-date guidance are in place, and enabling full commencement of the amendments to the 2002 Act, which I have described. For the powers that are not yet in force, we are working towards a common commencement date of 1 March. The use of the powers will be rightly guided by the revised codes of practice. I make no apology for repeating that the codes are an important safeguard to ensure the targeted, proportionate and effective use of the powers in the Act, balanced against the entitlements—my brief says “rights”, a word I always hesitate to use, but I mean the lawful entitlements that we often call rights—of individuals and communities. I therefore ask the House to approve the orders to give effect to the codes of practice.
In order not to disappoint you of all people, Mr Speaker, I conclude by quoting my favourite poet—not T. S. Eliot, but W. B. Yeats:
“Do not wait to strike till the iron is hot; but make it hot by striking.”
The Government, with appropriate alacrity and determination, and with the moderation associated with putting in place such safeguards, are indeed striking to make the iron hot. In that spirit, I hope the whole House will agree that the orders are an appropriate way forward, with appropriate checks and balances in the exercise of these vital powers.
Mr Hayes
I shall answer one or two points on the first of the codes, then, with your permission and indulgence, Mr Speaker, I shall move the subsequent ones formally.
The points that have been made are all in the spirit of wanting the measure to work. I am grateful to the House for that. The shadow Minister, the hon. Member for Birmingham, Erdington (Jack Dromey), made the telling point that this has long been a consideration of this House and of successive Governments. He referenced in particular the 2002 Act and he will know that subsequent legislation to which I referred earlier builds on that Act and brings it up to date, because as crime changes, the proceeds of crime and our ability to recover them change too. Very much in that spirit, I welcome what he said.
I note the hon. Gentleman’s point about the way the measure is explained. Although with typical courtesy he did not draw the attention of hon. Members to the fact, I am aware that the Secondary Legislation Scrutiny Committee felt that the explanatory memorandum that accompanied these orders was not sufficient. I agree that the policy background in the memorandum was insufficient and did not set out that the powers will operate in the way I want them to, as he said. To that end, I am delighted to be able to tell him that this very morning I asked my officials to redraw the explanatory memorandum in exactly the form that he requested, with worked examples of how these things might work in practice. These are complex matters, but none the less it seems to me that they need to be articulated in a way that makes it absolutely clear how the codes will introduce the kind of safeguards that we all favour.
To that end, I can assure the House that my officials are well aware that the explanatory memorandum must do just that. I am delighted to be able to tell the House that the Secondary Legislation Scrutiny Committee has said that were that to be done with the speed and in the fashion that I have described, it would be satisfied. The hon. Gentleman has done a service to this House and it is not his fault that I have anticipated his point by doing what I have described this morning. Indeed, it shows that we are on the same page.
My hon. Friend the Member for North West Hampshire (Kit Malthouse), who has moved—he is in his place, but his place has changed—made the interesting suggestion that the police might be incentivised, if I might put it in those terms, to go still further if they were to recover some of the costs of their inquiries. That is an interesting suggestion. It would be above my pay grade and outside my remit to agree it on the Floor of the House at this very moment, but I shall certainly take it back to the Department to discuss with the policing Minister and others.
Lucy Frazer (South East Cambridgeshire) (Con)
My right hon. Friend rightly mentioned that the explanatory memorandum could go into a little more detail, and I welcome that suggestion. Paragraph 4.9 of the explanatory memorandum suggests not only that there have been new additions but that:
“The code has been slightly restructured to make it easier to read and understand.”
Would it be possible to set out what is a clarification and what is a new provision, so that when that is considered in due course it will be clear that some points are just clarifications rather than new provisions?
Mr Hayes
With the eye for detail that my hon. Friend’s scrutiny increasingly shows, and for which she is building a substantial reputation, she draws attention to precisely one of the matters that I discussed with my officials in the conversation I had with them this morning, to which I referred in relation to the comments made by the shadow Minister. It is right that we should clarify that point. She is also right that we need to consider the whole of the explanatory memorandum in a similar spirit, and that is precisely what we intend to do. I am grateful to her for allowing me to illustrate that not only she has an eye for detail, but the Minister has too.
The points made by the hon. Member for Foyle (Mark Durkan) seemed to me to be absolutely on the button. It is important that these things are dealt with consistently and that we take them seriously. I make no comments on his remarks about the previous history in the Province, but I can assure him that we are determined that the powers shall apply across our kingdom and that they will be pursued with appropriate vehemence. There can be no greater mission than to ensure that criminals do not profit from what they do. That is precisely what we intend to achieve. I am grateful for his support and for the comments he made about that.
The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) spoke about immigration officers’ powers. I take his point; they have been generally expanded so that they are now mainstream law enforcement officers, like the police, the NCA and others. There is appropriate training—he is right that it is very important that that takes place—and appropriate safeguards and oversight, as there always should be in such matters. This is in relation to the 2002 Act, as I said, and I will pass concerns on to the Minister for Immigration so that the people for whom he is responsible are equipped with the information and skills they need. As I said in response to the hon. Member for Foyle (Mark Durkan), it is important that we behave consistently, and I am grateful for his contribution to the debate.
The hon. Member for Strangford (Jim Shannon) spoke about effective enforcement, and not only is it important that these codes are clear, established, transparent and comprehensible, but the powers that they effect or give appropriate safeguards to must be used. As he said, it is right that there has been a determination in this House, but we must ensure that that is seen through to the point of impact. It is all very well having intent, a legislative vehicle and safeguards, but there must also be a determination that this is seen as an important priority in the Province and across the United Kingdom.
This has been a useful debate, and I am grateful for the spirit in which the House has considered these matters. It is perhaps best to end not with Yeats—although I could, and I am tempted to—but with C. S. Lewis, who said in “The Weight of Glory” that
“the art of life consists in tackling each immediate evil as well as we can”.
The proceeds of crime are an evil that this Government are entirely determined to tackle, and these codes will help us to do so. In that spirit, I commend the motion to the House.
Mr Speaker
With the indulgence of both the Chair and the House, the Minister has served up both a starter and a pudding, for which I am sure the House is deeply grateful. The main course has, of course, been provided by other hon. Members who have contributed to the debate and whom the Minister has graciously accommodated.
Question put and agreed to.
Oral Answers to Questions
John Hayes Excerpts(10 years, 2 months ago)
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Liz Saville Roberts (Dwyfor Meirionnydd) (PC)
5. What estimate she has made of the number of crimes committed online in 2014-15; and how many of those crimes were (a) recorded, (b) investigated and (c) resulted in a conviction.
The Minister for Security (Mr John Hayes)
Crime is falling and crime is changing. Different types of crime may have an online element and an accurate national picture is critical to informing our ongoing response to cybercrime. That is why the Office for National Statistics recently published, for the very first time, initial estimates of the numbers of frauds and cybercrimes committed per year.
Liz Saville Roberts
None the less, the organisation Kick it Out, which campaigns to kick racism out of football, recorded more than 130,000 instances of racist abuse of footballers and their teams via social media in 2014-15, and the chief constable leading on digital crime fears that the police are on the verge of being overwhelmed. What steps is the Minister taking to ensure that all police officers have the capacity to make risk-based assessments and to prioritise this ever-increasing crime appropriately?
Mr Hayes
The hon. Lady makes a good point. She has focused her parliamentary career so far on the issue of online harassment, although she did not mention that in detail today. She knows that it is something that she and I both take very seriously. We welcome the preliminary trial by the Office for National Statistics to better reflect fraud and cybercrime in statistics. Having a more accurate picture will allow us to take the kinds of steps that she has advertised to the House today, because we will then be able to get a better idea of the scale and character of cybercrime and to do the preparatory work that she has requested. I take this seriously, as she clearly does, and I know that the whole House will join us in that.
Michael Fabricant (Lichfield) (Con)
It is not just harassment that is done over the internet; it is also phishing and fraud. Does my right hon. Friend not think that the Home Office might have a role to play in educating internet users in how best to protect themselves against such cybercrime?
Mr Hayes
As I said, when we get to understand the figures more accurately—the measures we have taken to look at these matters in greater detail will allow us to do that—my hon. Friend is absolutely right that we will need to be precautionary in our approach. He is also right that fraud is a significant element of the problem. In dealing with online fraud, we need to measure what is happening, look at what can be done about it and take appropriate action, and that is exactly what we will do.
Stewart Malcolm McDonald (Glasgow South) (SNP)
The media today reports that as more people use social networking apps such as Tinder and Grindr, reports of burglary and rape are rising. Can the Minister outline what assessment the Home Office has made of the problem and how it plans to attack it across these islands, in co-ordination with the devolved Governments?
Mr Hayes
The hon. Gentleman will know that we have a national cyber-security programme. We have invested more than £90 million in this Parliament and the previous Parliament to bolster the law enforcement response, and we will continue to make that investment. Indeed, the Government have committed to spending £1.9 billion on cyber-security over the next five years, including tackling cybercrime. It is about resources, earlier identification and preparation, but it is also worth saying that we have established the national cybercrime unit, so the Government are doing more, taking the steps necessary, tackling this seriously, listening and learning—unafraid of taking action.
Jeremy Lefroy (Stafford) (Con)
6. What steps the Government are taking to stop firearms, illegal drugs and other contraband entering the UK.
Andrew Stephenson (Pendle) (Con)
T7. Following the horrendous attacks in Paris, what steps are the Government taking to ensure that young people’s minds in the UK are not poisoned and that they are not radicalised by the poisonous ideology put forward by Daesh?
The Minister for Security (Mr John Hayes)
My hon. Friend will know that much of this is done online, where there are those who are seeking to corrupt people to inspire them to murder and maim their neighbours. Since February 2010, more than 120,000 pieces of unlawful terrorist material have been taken down from the internet, and our Prevent programme works with communities, schools, colleges and local authorities across the country. Mr Speaker, I am intolerant—intolerant of that wickedness which seeks to do so much harm.
draft Regulation of Investigatory Powers (Interception of Communications: code of practice) order 2015
Draft Equipment Interference (Code of Practice) Order 2015
John Hayes Excerpts(10 years, 2 months ago)
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The Minister for Security (Mr John Hayes)
I beg to move,
That the Committee has considered the draft Regulation of Investigatory Powers (Interception of Communications: Code of Practice) Order 2015.
The Chair
With this it will be convenient to consider the draft Equipment Interference (Code of Practice) Order 2015.
Mr Hayes
Keeping people safe is a primary responsibility of Government and one on which everything else the Government do depends. It transcends partisan politics. Indeed, many of the debates we have in Committees such as this and on the Floor of the House reflect that understanding, which crosses parties.
This is about the national interest and the common good. Before I come to the detail of the orders, it is worth emphasising the very challenging circumstances in which we debate them. The context is a terrorist threat to the United Kingdom from international terrorism that remains at severe level, meaning that an attack is highly likely. We all heard the director general of MI5, Andrew Parker, describe a few weeks ago the character of that threat and the fact that it had been thwarted more than half a dozen times in the past year. He said that circumstances were severe and that the threat level is the highest he has seen in his 31-year career.
Technological change is affecting our ability to deal with those threats. The internet has changed so many aspects of our lives—some for good, and many for ill. Revolutionary communications are taken advantage of by people for good purposes and by those who seek to do us harm, the latter of which takes two forms, in essence: not merely the willingness but the daily examples of those who seek to radicalise individuals to murder and maim their neighbours, and the ability of those malevolent individuals to communicate with one another to plan, organise and plot.
Changes to the technology that people use to communicate are making it harder for our security agencies to maintain the capability to intercept the communications of terrorists. Whenever we lose visibility of what terrorists are saying and doing, our ability to understand and mitigate the threat they pose is obviously reduced. Almost all of MI5’s top priority UK counter-terrorism investigations have used intercept capabilities in some form to identify, understand and disrupt the plots of those who seek to do us harm.
To have the best chance of preventing such harm, we need the capability to shine a light on the activity of the worst individuals who pose the greatest threats. The dark places from where those who wish to harm us plot and plan are increasing. We need to be able to access communications to obtain relevant data on those people when we have a good reason to do so.
Members will know that the House is currently considering a draft Bill introduced on 4 November last year. Indeed, a Joint Committee of Parliament will report reasonably shortly, having taken evidence from all kinds of important people in respect of that draft Bill. Some will say, “You’ve got a draft Bill before Parliament. You’re going to have new legislation. Why do you need these orders?” The reason is that this is a Government who go the extra mile, who do the right thing and who live up to their responsibilities and honour their commitments.
We committed in earlier legislation to consult on new codes of practice in these two areas, and that is precisely what we did. We consulted between February and March 2015, and the revised codes of practice reflect that original commitment and the consultation that followed it. It is right that before the draft Investigatory Powers Bill becomes law, as I hope it does, and certainly before its passage through the House, we have an adequate code of practice. It would be wrong to create a gap between the end of the consultation and the progress of that draft and, ultimately, post-draft legislation.
The safeguards provided in the codes are not new. In respect of the interception code, the law enforcement and intelligence agencies have always had robust internal arrangements overseen by the interception of communications commissioner. The draft code provides more detail about those arrangements. First, it provides additional information on the safeguards that exist for the interception and handling of external communications under section 8(4) of the Regulation of Investigatory Powers Act 2000—the ability to undertake bulk interception.
Secondly, the draft code sets out further information on the protections afforded to legally privileged material and other confidential material. As an example, the code requires the Secretary of State personally to consider the likelihood that the privileged material will be intercepted when determining whether it is necessary and proportionate to grant a warrant. It also requires additional internal safeguards to be applied in cases where legally privileged material is intercepted, including that, where such material is retained, it must be reported to the independent interception of communications commissioner.
Thirdly, the draft code includes minor changes to reflect developments in law and practice since the code first came into force in 2002. For example, it reflects regulations introduced in 2011, which amended RIPA to create the power for the interception commissioner to impose a fine for certain kinds of unlawful interception. Much of the new material on safeguards that apply to the exercise of interception powers reflects the information disclosed during the legal proceedings in the Investigatory Powers Tribunal. It is right that that information is included in the codes of practice so that it is easy for members of the public to access it. At this point, Ms Buck, would you like me to deal with the second code of practice?
Mr Hayes
I think that will be more convenient for the Committee. It will mean that our affairs do not continue interminably, which will please all members of the Committee.
The draft equipment interference code of practice order is new. Equipment interference is a set of techniques used to obtain a variety of data from equipment, including traditional computers and computer-like devices such as tablets, handheld devices and so on. Equipment interference can be carried out remotely or by physically interacting with the equipment. It allows the security and intelligence agencies to keep pace with terrorists and serious criminals, who increasingly use sophisticated techniques to communicate, to evade detection in dark places, and to plan and plot what they do.
Equipment interference has been instrumental in disrupting credible threats to life, including those against UK citizens. MI5 has relied on that capability in the overall majority of high-priority investigations over the past year. The Security Service Act 1989 and the Intelligence Services Act 1994 provide the legislative basis for the security and intelligence agencies to interfere with computers and communication devices. Warrants may be issued by the Secretary of State only when they consider that the activities to be authorised are necessary and proportionate. To assure the Committee that the Government are acting properly, I emphasise that necessity and proportionality are at the heart of the codes and of all we do in this area. They must always be so.
The use of the powers is subject to independent oversight by the intelligence services commissioner. Prior to the draft code that we are debating, the equipment interference powers had not had their own bespoke code of practice. This was part of the debate we had on primary legislation, part of the commitment the Government made and part of the consultation that recently came to a close.
What is new? The code does not confer new powers but simply makes public robust safeguards that the intelligence agencies already apply, but that are now in a code—clear, transparent and comprehensible. It brings greater transparency to the robust processes that the agencies adhere to when interfering with computer equipment to disrupt serious crime, and identify and stop others who seek to harm us. For the first time, the code of practice publicly sets out stringent safeguards that the intelligence agencies apply to their use of equipment interference; strict rules on how data acquired through equipment interference must be handled, and how they must be secured and safely stored; and how the data must be destroyed when it is no longer necessary or proportionate to hold them.
The code explains the consideration of necessity and proportionality that I have described, ensuring that this vital capability can be used only when the scope of the interference has been carefully considered and compared with the potential benefits of the operation. Furthermore, the code explains that equipment interference should not be considered a proportionate power if other less intrusive methods of acquiring the same data are possible. As I said earlier, it should be used only when necessary, when other things are inadequate to achieve the end.
Akin to the interception code of practice, this document also provides reassurance that the acquisition of legally privileged and confidential information is subject to even greater oversight and safeguards. The code sets out a series of tests that must be applied before any authorisation is granted and the subsequent handling arrangements should confidential material be acquired. Finally, the code also provides information regarding the use of equipment interference targeted at equipment outside this country. This section ensures that the public have a comprehensive guide to the use of equipment interference powers by the intelligence agencies and the range of safeguards that apply.
The codes of practice contain no new powers; I repeat that for absolute certainty and clarity. Instead, they reflect the current safeguards applied by the relevant agencies. The purpose of the codes is to make more information publicly available about those stringent safeguards. They ensure that the powers can be used—I emphasise again—only when necessary and proportionate. I hope that in introducing them I have been just that: necessary and proportionate.
Keir Starmer (Holborn and St Pancras) (Lab)
The Opposition welcome the codes and the tone and manner in which the debate has been opened by the Minister. I will start with some general propositions, the most obvious of which is this: the ability to intercept the communication of those who mean us harm is a vital tool in the fight against terrorism and serious crime that is available to the police and security services. I saw that for myself when I was Director of Public Prosecutions for five years. I worked closely with the police and security services, relying on the sort of intercept and data that the codes refer to on a daily basis in the fight against both terrorism and serious crime.
On the framework, the powers set out in the draft codes—the interception of communications and equipment interference, which is being put into a code for the first time—are among the most intrusive and therefore the most sensitive available. The need for strict adherence to the safeguards in the Regulation of Investigatory Powers Act is vital; it is those safeguards that allow the powers to be used. Whether the safeguards in the existing legislative framework are robust enough is a debate for yesterday, because the draft Investigatory Powers Bill is going through its various processes currently with the Joint Committee, and no doubt many of the issues discussed today will be equally if not more relevant in those debates. Given the legislation that we have and that we are existing under at the moment, it is welcome to have codes that give guidance to those who need to exercise such powers, and to ensure that, as far as possible, the safeguards are properly applied.
The Minister mentioned necessity and proportionality, which are key to the exercise of any of the powers referred to in the codes; they are, as the Minister says, at the heart. In that respect, I welcome the guidance in paragraph 3.6 of the interception of communications draft code and in paragraphs 2.6 and 2.7 of the equipment interference draft code, which spell out in practical terms how proportionality is to be applied. Having worked, before I was Director of Public Prosecutions, with the Police Service of Northern Ireland, I know that practical guidance to those on the ground as to how they assess necessity and proportionality is critical. It is well set out in those parts of the code, and that is welcome guidance not only for all of us and for the public to see, but for those charged with implementing the codes. In those paragraphs are the key principles that privacy must be balanced against the need for activity in operational terms, and the reminder, if it is needed for those exercising the powers, that actions should not be deemed proportionate simply because there is a potential threat to security. If that were the case, the proportionality test would be redundant.
Paragraphs 3.22 and 3.23 of the interception of communications draft code are welcome, because they make clear for the first time in a code that a
“communication remains in the course of its transmission regardless of whether the communication has previously been read, viewed or listened to.”
That central issue emerged in the investigations and prosecutions relating to allegations of hacking across various news bodies. At one stage, there was a lack of clarity about whether a communication that had already been listened to remained in the course of its transmission. That gave rise to a huge debate before and after the Leveson inquiry. It is welcome that the new code aligns the position in guidance with the approach suggested by Lord Justice Leveson, which in my opinion is the right approach.
Keir Starmer
I am grateful for that.
Regarding the remaining tricky or more complicated areas, I shall focus on legal professional privilege and the protection of communications involving confidential journalistic material and other confidential information. Before I do so, though, I highlight the point made by a number of respondents to the consultation on the equipment interference code. The Government’s response to the consultation summarises their point as saying that
“a code of practice was not a suitable vehicle for setting out the power to conduct equipment interference and that it should be provided for in primary legislation. This would offer an opportunity to have an open and transparent debate about the use of equipment interference by the Security and Intelligence agencies.”
That is a point well made in the consultation, although the Government’s response is inevitably constrained by the legislation that is currently in place. Nevertheless, it emphasises the need for a real debate on this issue as the draft Investigatory Powers Bill goes through its various stages.
I will not take up time by reminding the Committee of the importance of legal professional privilege, but the need for reform and further guidance under the code is absolutely clear. In that respect, probably the only quarrel I have with the Minister is that I am not sure that the new codes are simply about the Government doing their job properly. They were necessary as a result of the ruling in the Investigatory Powers Tribunal, which declared in February last year that the previous approach was not in accordance with article 8 of the European convention on human rights. That position was rightly conceded by the Government, because in that case the IPT ruled that
“the regime for the interception/obtaining, analysis, use, disclosure and destruction of legally privileged material has contravened Article 8 ECHR and was accordingly unlawful.”
It was therefore necessary, for the period that the current regime remains intact, to have further guidance to bring the approach into accordance with the IPT.
I remind the Committee that the previous code simply said that caseworkers
“should be alert to any intercept material which may be subject to legal privilege.”
It did not go on to state what steps should be taken if legally privileged material was identified. There was a deficiency there that the new code is intended to deal with.
Although they do not ring-fence legally privileged material, the new codes do provide much more detailed guidance, which, again, is welcome, particularly in paragraphs 4.5 to 4.25 of the interception of communications draft code and chapter 3 of the equipment interference draft code. I highlight the fact that the latter provides that, prior to any warrant being granted where interception of privileged information is likely, there must be an assessment of how likely it is that such information will be intercepted. So, first, there must be an assessment before the event. Secondly, when the interception of legally privileged information is intended, the threshold, as the Minister said, is that there must be
“exceptional and compelling circumstances that make the authorisation necessary.”
Thirdly, the code makes it clear that the threshold will be met when there is an
“imminent threat of death or serious injury or serious threat to national security”
but it is anticipated that such situations will be rare. In addition, the code states that any communication between lawyer and client or any third party for the purpose of actual or contemplated litigation
“must be presumed to be privileged unless the contrary is established”.
Those are three or four aspects in which the guidance is much sharper and clearer. Time will tell—in the limited life of such codes—whether the regime is robust enough. Over the coming weeks and months, we will obviously keep a beady eye on how matters progress. To some extent, however, such matters will be considered in greater detail as the Bill proceeds.
My only point at this stage is that there is a question mark over whether the protection in relation to dissemination is strong enough under the code. The code simply states that privileged information cannot be disseminated unless a legal adviser has been consulted on the lawfulness of such action and that “all reasonable steps” must be taken to ensure that “as far as practicable” authorities involved in legal proceedings are prevented from seeing privileged information relating to those proceedings. Why does the code not expressly prevent dissemination where legal advice has been received as to its unlawfulness? I accept, however, that that question is probably equally well suited to the forthcoming debate on the Bill.
Moving on, it is noticeable that the protection for journalistic material and other confidential information is a lot weaker than the protection for legally privileged material. In his report, “A Question of Trust”, David Anderson, the Government’s reviewer, points out:
“The Draft Interception Code sets out similar provisions in respect of journalistic or other confidential material but the threshold for access is not as high as that in respect of legal privilege.”
It is obviously a matter of some concern that there are two different regimes for protected information. This matter was raised in the consultation, and I remind the Committee that the News Media Association took the view that the current regulatory framework
“poses a threat to journalism, journalists and their sources”.
The new provisions in the code of course have a chequered history. The National Union of Journalists, in a joint statement with the Bar Council, said that
“access to professional data should be protected in law and should be subject to independent, judicial oversight. Using codes of practice—such as the draft code under RIPA—undermines the rule of law.”
To some extent, their plea is for a change in the law, which is hopefully now forthcoming. The general secretary of the NUJ said:
“The proposals contained in the existing RIPA code of practice simply do not offer the protection to journalists and to sources, and are in fact dangerously inadequate. New legislation is urgently needed—it is vital that judicial oversight is introduced to force police officers and other snoopers to apply to judges in a transparent process before surveillance powers against media and legal professionals can be considered.”
Finally, the Press Gazette and the Society of Editors said that the draft code provides
“wholly inadequate protection for journalists’ sources”
and demanded that communication between journalists and public officials be treated the same as privileged information.
I recognise that the target of some of those comments was new legislation rather than a different code and that the code can only go so far, but not to have aligned in the interim the protection for journalistic material and other confidential material with the protection now given in the code to legally privileged material is a missed opportunity.
Mr Hayes
The hon. and learned Member for Holborn and St Pancras, whom I should have welcomed to his place at the outset—I do so now with your indulgence, Ms Buck—affirmed what I said about portability and necessity. As I said when I intervened on him, this is in the code for the first time. I draw attention to paragraph 3.6 of the interception of communications draft code of practice.
The hon. and learned Gentleman asked specific questions about the consultation. He is right: there were over 150 responses, one of which did talk about whether the safeguards should be put in primary legislation or in a code. The legislation underpinning much of the good practice that he absolutely properly called for is already in place. The assertion made in the consultation was misjudged, because in the Security Service Act 1989 and the Intelligence Services Act 1994 there is a legislative basis for the security services to interfere with computers and communications devices. It is set out in that legislation.
It is true that the safeguards and protections that have been commonly used, as I said at the outset, have not previously been as accessible publicly, so the code sets them out very clearly. However, those safeguards and that diligence had applied to both those legislative vehicles up to now. We are not putting in place new safeguards but simply codifying them. That was perhaps not quite appreciated in some of the consultation.
There is also a bigger issue. As I look round and see distinguished right hon. and hon. Members of this House, I think it not unreasonable to say that there is always a debate about how much is put in a Bill and how much is dealt with in supplementary material. How often I have had that conversation! In this area in particular, which is so rapidly moving—where the threat we face is dynamic and where the technology changes very quickly—the risk of rigidity is even greater than in most legislation. Retaining a degree of responsiveness through the flexibility provided by using codes of practice seems particularly pertinent in this area, as long as they are as robust, certain and well defined as the hon. and learned Gentleman suggested. He made the very good point that the language used becomes critical if we adopt the position I just have, because the codes will be tested in law.
Perhaps I was a little coy when I spoke initially, but the hon. and learned Gentleman is right that part of the reason why we are doing this are the challenges that have taken place. He drew the Committee’s attention to them entirely properly and I would not want to disagree. That again emphasises the need for precision in language, because these things would be challenged if we were to be anything other than precise.
To that end, the hon. and learned Gentleman dwelt for a while on whether we should have used the word “prevent” in respect of the dissemination of privileged information. We considered that issue in the course of the consultation. Let me be clear: the code states that all applications to intercept communications must be authorised by the Secretary of State. Further, the draft code requires the Secretary of State to apply:
“Particular consideration…in cases where the subject of the interception might reasonably assume a high degree of privacy, or where confidential information is involved.”
There is a general assumption that the interception is of particular interest, if I can put it in those terms, where a high degree of privacy or confidential information is involved and that a bar needs to be set at a level that takes account of the importance of that privacy and confidentiality.
Keir Starmer
The point I was making was limited to dissemination where it has been established that material has been unlawfully obtained, as will happen in certain situations. My point is about the safeguard where, whatever the prior assessment, it transpires that legally privileged material has been captured and should not have been. The question was why in those circumstances there is not a prohibition on dissemination, rather than the assessment before the event.
Mr Hayes
I was going on to that point, but that would have deprived the hon. and learned Gentleman of his place in the sun, so I am glad that I did not. I was going to add that there are further safeguards on the retention and dissemination of confidential material that must apply when seeking and granting a warrant. In any case where confidential information is retained, there is a requirement for notification to the interception of communications commissioner.
The hon. and learned Gentleman is right that, although they are related, the acquisition, dissemination and retention are different issues, and each requires appropriate safeguards. He made a good, more general point, as did the former Secretary of State for Scotland, the right hon. Member for Orkney and Shetland, about the need to look at things again in light of the new legislation, and it is absolutely right that we do. I confirm, as they asked me to, that that will happen, but it would be inappropriate for the Government to say, “We will not do anything until then.” Unless the important cross-House Committee considering these things makes alarmingly radical recommendations or the Bill Committee in its proper scrutiny of these things forces the Minister to make radical changes, I do not anticipate extraordinary changes between what we see today and what we end up with. However, the hon. and learned Gentleman and the former Secretary of State for Scotland are both absolutely right that proper reconsideration is necessary in the context of that new legislation. It would be inappropriate not to do that. The hon. and learned Gentleman is right that we will look at such things in that way.
The hon. and learned Gentleman also raised the issue of journalists. There is a difference between journalists and lawyers in these terms, because commissioned lawyers retain for all kinds of purposes, many of which he was intimately familiar with in his previous life. My hon. Friend the Member for Fareham is right that these days defining a journalist is more complicated than defining a lawyer, but there is a good argument for applying the provisions I have just described around privacy and particularly sensitive or confidential information to those areas.
I met representatives of the National Union of Journalists in that context, and they put directly to me the case that the hon. and learned Gentleman described. It was right to hear that case. I am not insensitive to the argument, but equally we have probably got the balance about right in emphasising the need for confidentiality and the higher bar, without treating journalists in quite the same way as we treat lawyers.
I think I have covered most of the points that the hon. and learned Gentleman raised. I will sit down unless he wants to intervene on me to raise additional points.
Mr Hayes
Brevity, as you know, Ms Buck, is my middle name.
Question put and agreed to.
Resolved,
That the Committee has considered the draft Regulation of Investigatory Powers (Interception of Communications: Code of Practice) Order 2015.
DRAFT EQUIPMENT INTERFERENCE (CODE OF PRACTICE) ORDER 2015
Resolved,
That the Committee has considered the draft Equipment Interference (Code of Practice) Order 2015.—(Mr John Hayes.)
Mr Shaker Aamer
John Hayes Excerpts(10 years, 4 months ago)
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The Minister for Security (Mr John Hayes)
Mrs Moon, you and my hon. Friend the Member for Monmouth (David T. C. Davies), who has secured this debate, will appreciate that there are some things that I can deal with straightforwardly in this debate and some matters that are not appropriate to raise, which are subject to proceedings that would not be appropriate to refer to. Obviously, if there are any security matters that I am unable to raise, my hon. Friend will appreciate that, given his experience of this House, and I know that he will not test me on them.
I am grateful to my hon. Friend for bringing this matter to the House. Shaker Aamer is the last UK resident to be released from Guantanamo Bay. As my hon. Friend will be aware, Mr Aamer was released and returned to the UK on 30 October into Biggin Hill airport. Other Members secured debates earlier this year, seeking Mr Aamer’s release, and as you will know, Mrs Moon, there is an all-party group on Shaker Aamer. Those Members have made their arguments and those arguments are now, of course, in the context of Mr Aamer’s release, but I appreciate that other Members—my hon. Friend is clearly one of them—who may seek to question why this Government went about trying to seek Mr Aamer’s return to the United Kingdom.
David T. C. Davies
Will my right hon. Friend give way on that issue, because that is not actually what I am raising?
Mr Hayes
Forgive me, but I will just make this fundamental point, because I think we can find a synthesis across this Chamber if we all understand it. Indefinite detention without fair trial is fundamentally unacceptable. That is central not only to our view of the legal process but, more than that, to the ethical framework on which that process is built. It is an a priori assumption that detention without trial is unacceptable, and I am absolutely certain that my hon. Friend, who is about to intervene on me again, will agree with that.
David T. C. Davies
Actually, I was just going to point out, with the greatest of respect to my right hon. Friend, whom I have known for a long time, that that is not what I have raised here. I am not making any comment about Mr Aamer’s detention. I am making a comment about the prospect of his receiving a secret payment of £1 million or thereabouts. That is what I am raising today.
Mr Hayes
That is what my hon. Friend has raised in part, but it is impossible to consider it out of the context of the circumstances that prevail in respect of Shaker Aamer. My belief, which I am sure my hon. Friend and the whole Chamber shares, is that the fairness of any judicial system is vital to its popular acceptance. The unintended consequence of Guantanamo Bay is to create a perception of unfairness, which potentially fuels distaste for and hostility towards the US and her allies. With that in mind, the UK Government committed to making best endeavours to bring Mr Aamer back to the UK. Representations on his behalf in which the UK position was made clear were made by Ministers at the most senior levels, including by the Prime Minister to President Obama. The whole Chamber will be aware of that, because it was the subject of some publicity. The fact that the US Administration agreed to review Mr Aamer’s case as a priority and then release him demonstrated our close ties once again.
Following the return of Mr Aamer, it is important to emphasise that the UK is not considering accepting any further detainees from Guantanamo Bay. The timetable for the closure of that facility has not emerged, but Members will be mindful that it remains a matter for the US Government. Members will know that President Obama has commented on that a number of times. In respect of Mr Aamer, officials in the Foreign and Commonwealth Office and across the Government worked to ensure that the return happened quickly and securely.
Dr Mathias
In view of the motion’s wording, will the Minister tell us whether the Government are looking into the allegations that UK personnel may have been present at times when torture was administered to Mr Shaker Aamer, whether in Afghanistan or in Guantanamo Bay?
Mr Hayes
I will in a moment. I am not sufficiently accomplished to remember all the interventions and then respond to them in sequence. I need to do them one by one, and I am sure that my hon. Friend will understand.
My hon. Friend the Member for Twickenham (Dr Mathias) made her point and put it on record, but she must know that it would not be appropriate for me to comment on the details of anyone involved in alleged events in Guantanamo Bay, and I certainly cannot do so in this debate.
David T. C. Davies
Does the Minister not agree that the allegations of torture are simply that—allegations? Those allegations are besmirching the American Government, and I have as much right to ask why Mr Aamer was out there on a false passport, working for a charity that I cannot find out anything about, as others have to suggest that he was tortured when he got there. They are all allegations, and that is it.
Mr Hayes
With the combination of assiduity, perspicacity and good hearing that my hon. Friend personifies, he will have heard me use the phrase, “anyone involved in alleged events”.
Returning to my script, I understand that the public will have concerns in respect of a former detainee of Guantanamo Bay returning to the UK and the potential security implications. My hon. Friend articulated some of that today, but it is important for me to say that I cannot comment on why Mr Aamer was detained in the first instance or provide any details, as I said at the outset of the debate, on security arrangements in this individual case. It has been a long tradition of successive Governments not to do that, and it would be entirely inappropriate for me to break with it today, given the sensitivity of these matters.
I reassure the whole Chamber, however, that the first duty of any Government is to protect the security of our citizens, and we take that duty extremely seriously. Any individual seeking to engage in terrorism-related activity should be in no doubt that the relevant authorities will take the strongest possible action to protect our national security and ensure that they are brought to justice. Recent events around the world, particularly so close in Paris, have demonstrated that the threat remains real, severe and dynamic.
The Chamber will not be oblivious to the fact that both the Prime Minister and the director of MI5 have made absolutely clear that we have foiled no fewer than seven different terrorist plots in the past year alone through the work of our security services and police. That is ample illustration of the urgency, severity and character of the work we are doing. The police and security and intelligence agencies already have a range of powers available to them, stretching from prosecution for criminal offences relating to terrorism to executive disruption powers, such as the imposition of terrorism prevention and investigation measures.
Dealing with Syria, we have a wide range of powers to disrupt travel and manage the risk posed by returnees. Those powers include the ability to temporarily seize and retain travel documents to disrupt immediate travel and the creation of a temporary exclusion order to enable the UK Government to temporarily disrupt and control an individual’s return to the UK.
Of course there will be those who criticise some of the measures as an infringement of civil liberties, but I disagree. They are about protecting precious freedoms from terrorists who want to steal them from us. Our legislation is robust, and because of our determination to get the balance right, those powers are matched with appropriate checks and balances, safeguards and judicial oversight. We remain confident that our law enforcement and intelligence agencies have the tools available to deal with those who seek to threaten the UK.
There have been comments in the media, reflected in my hon. Friend’s speech today, about any payments that may be made to Mr Aamer. I refer those present to the statement that my hon. Friend referred to by the then Lord Chancellor, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke). On 16 November 2010, he stated that
“the Government have now agreed a mediated settlement of the civil damages claims brought by detainees held at Guantanamo Bay. The details of that settlement have been made subject to a legally binding confidentiality agreement.”—[Official Report, 16 November 2010; Vol. 518, c. 752.]
I am repeating a point that my hon. Friend made, and I know he would not expect me to go further than that today.
Mr Hayes
As the statement I just read out said, the settlement is subject to a binding confidentiality agreement. That is not uncommon in law. My hon. Friend is a distinguished parliamentarian and an authority on a number of matters, and he will know that it is not uncommon to have confidentiality agreements in such cases.
The former Justice Secretary, my right hon. and learned Friend the Member for Rushcliffe, noted that the Government of the time inherited the issues around the treatment of UK detainees held by other countries from previous Governments and that the issues needed to be addressed. He said that failure to do so would mean that our reputation as a country that believes in the rule of law and fairness, as was described earlier, risked being tarnished. As was also set out in that statement, no admissions of culpability were made in settling the claims and none of the claimants had withdrawn their allegations. It was a mediated settlement where confidentiality is a common feature. I am therefore unable to provide any further comment on legal action brought by those detained in Guantanamo Bay than that already provided by the statement.
It is open to Mr Aamer to bring a damages claim in the US. That was raised in the course of considerations, and it is a matter for the US justice system. I cannot comment on that, and I cannot comment on what Mr Aamer plans to do, because I do not know.
In conclusion, I reiterate that the UK has long held that indefinite detention without trial is fundamentally unacceptable, because it is unreasonable and unfair. The rule of law depends on popular acclaim. It depends on us all believing that we will be treated fairly, properly and equally. My hon. Friend will know that the Prime Minister has asked the Intelligence and Security Committee to examine the themes and issues set out in “The Report of the Detainee Inquiry”, which was published by the Government in December 2013. I have outlined as far as I can Mr Aamer’s immigration status and the measures in place to deal with any individual engaging in terrorist-related activity. In addition, I have reminded those present of the statement by the former Justice Secretary on the damages claims brought by those detained in Guantanamo Bay and the mediated settlement that followed. I know that my hon. Friend will be pleased to have had the opportunity to put these matters on record, and I know that he feels strongly about them. With the respect I offer him, I hope that he will respect my position in not being able to add further to these matters on this occasion in this House.