Investigatory Powers Bill

Debate between John Hayes and Anne McLaughlin

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

[Anne McLaughlin]

Part 6 of the Bill, on bulk powers, is perhaps one of its most controversial parts. The Scottish National party is calling for part 6 to be shelved along with part 7 until such time as an argument for their inclusion has been demonstrated by an independent review of their proportionality and operative necessity—that is to say that we believe that the powers in part 6 should be removed from the Bill until a satisfactory operational case is made for them.

The review the Government have agreed to is most welcome but they must get it right. It must be conducted properly if it is to be of any value to the process of parliamentary scrutiny or is to secure the public’s confidence in its conclusions. Yesterday we had sight of some more detail about the review, in a letter from the Minister to the hon. and learned Member for Holborn and St Pancras (Keir Starmer). We were particularly pleased to note that one of the review team will be a barrister who has a great deal of experience working as a special advocate acting against the Government in terrorism cases. That degree of balance is good and is to be welcomed.

The review needs to be given the time to do a thorough job, however, and we simply do not believe that three months is long enough. Even if it were, it would not be the first time we have been promised a date by which a report will be published, only then to be given another, and another.

[The Minister for Security (Mr John Hayes)]

I thank the hon. Lady for the warm words she is offering, which reflect the spirit in which this debate has been conducted throughout. The review will be conducted in the timeframe she describes because the Government are clear that it should take place while the Bill is live and is enjoying its passage through both Houses of Parliament. It would have been quite inappropriate to have a review once the Bill had passed into law.

[Anne McLaughlin]

I would argue that the review should have happened before now. Even if it is completed within three months, that will not be while scrutiny of the Bill is taking place here by elected Members; the scrutiny will be in the other place by Members of the House of Lords, who are not elected.

We are also confident that the review’s findings will not be significantly different from those of the reviews carried out by other countries, which I will come on to in a moment. In other words, it is likely to find that bulk powers are not necessary and give us no unique information that could not be garnered by other investigative techniques. Regarding those other techniques, the Government are arguing that new clause 5 will mean that bulk powers will be used only when other investigative techniques show up nothing, because the new clause recognises the importance of privacy to the individual—indeed, new clause 5 has been dubbed the privacy clause.

--- Later in debate ---

[Anne McLaughlin]

I wonder how the hon. Lady believes we will do that. The evidence reviewed by the Committee showed that bulk powers are counter-productive because the sheer scale of the data makes them impossible to analyse adequately. In fact, I believe the Government used the limited capacity of the security services to analyse bulk quantities of data as a form of assurance, which was strange to say the least.

[Mr John Hayes]

I say this to be helpful to the hon. Lady. I fear that the debate has moved on and she has not. The truth of the matter is that the bulk powers she describes were considered by the Intelligence and Security Committee, which is chaired by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). It established that there was both validity and necessity. She is arguing a general case on bulk rather than the case for safeguards. The debate we ought to be having is about safeguards, is it not?

[Anne McLaughlin]

I thank the Minister for that advice and will pass it on to my constituents, who have the same concerns as I do and whose concerns I am expressing.

As we know, the Bill is supposed to be a basis for the use of those techniques for quite some time, and we are not future-proofing the Bill if we say that it is absolutely fine to have intrusive bulk techniques because now, in 2016, we do not have the technical capabilities to analyse all the data. Some present-day practices are reliant on 32-year-old laws—they date back to 1984, of all years. If we get the measure wrong, there is every possibility that we will enshrine in law invasive practices that will become feasible only at some point in the next 32 years.

Perhaps the most worrying powers of part 6 refer to bulk equipment interference, which the Government helpfully outline as follows:

“bulk equipment interference is not targeted against particular person(s), organisation(s) or location(s) or against equipment that is being used for particular activities”.

It is therefore an indiscriminate form of interference that leaves systems vulnerable, not only to our own security services using their powers sparingly and proportionately, but to those looking to cause harm and to profit from broken security. If the front door of someone’s house has been kicked in by the police, criminals are not prevented from entering after their departure.

Our concerns regarding the bulk powers provisions in part 6 are connected to many of our concerns regarding the use of bulk datasets. At the heart of the matter is the retention of intimate personal details regarding the tens of millions of ordinary citizens of this country who do not merit such information being held by the state. We welcome the review of the use of bulk powers and recognise that other parts of the Bill impact on part 6 —it cannot stand in isolation. If bulk datasets are acquired by other mechanisms in the Bill, how are they to be dealt with and properly handled? Therefore, as we have stressed throughout, the Bill should be easy to understand, and should clarify what is permitted and what is not. We should not provide a mechanism whereby we rubber stamp practices that were never previously debated.

Again, the offline analogy is instructive. If we were asked by the state to deposit our membership forms for various organisations—political parties, campaign groups, golf clubs—or forms with our direct debit details, health records and other such bulk information into a big safe on the understanding that only the security services would have access to it, we would rightly baulk at such a proposal. Just because such a system is being proposed online and without the consent of the individuals concerned does not make it acceptable—in many ways, it makes it much worse. I hope the Minister will address that comparison.

--- Later in debate ---

[Mr Hayes]

I do not know if the hon. and learned Lady was listening, but I read out three things: 90% of operations in Afghanistan, 95% of cyber-attacks, every single major counter-terrorism investigation over the last decade. I cannot be plainer about the necessity, but because the Government are so determined to ensure adequate safeguards, we have agreed to a further review. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer), generously said, the review is to be completed in exactly the form that emerged as a result of the discussions between the Opposition and the Government—an illustration of the House behaving at its best. The review, chaired by David Anderson, will be able to look not just at utility—the point I made to the Chair of the ISC—but at necessity, and it will be independent.

[Anne McLaughlin]

So the Minister is saying that all these counter-terrorism activities were helped by bulk powers, but now we are going to have a review to see whether that is true. As I said, there were two independent reviews in the US. The NSA argued—much as he is arguing now—that all 54 counter-terrorism events had relied on bulk powers, but both independent committees said, “Absolutely not. Not at all. There were other techniques.” What will he do if this review finds the same as the two reviews in the US? Will he then remove the bulk powers from the Bill?

[Mr Hayes]

It is a bit rich to say, “We want a review and we want the Government to listen and agree”, and then, when they do listen and agree, to say, “You haven’t agreed enough or soon enough.” I accept that the review should be entirely independent—I made that clear in my letter to the shadow Minister. I accept that it will be for David Anderson to decide exactly how he goes about his work. I have further accepted today that he should look at international comparisons, which I think is perfectly reasonable. It will be for David Anderson to decide whether he does that; if he wants to, that will certainly be within his scope. This will be an independent review, with as much information as possible made public, and it will be able to range, in the way the hon. Lady has described, across these powers.

--- Later in debate ---

[Mr Hayes]

I thank the hon. and learned Gentleman for his support. I know that the Government Whips will take careful note of it. [Laughter.]

We have listened to the call for independent validation. David Anderson QC will undertake the review, so I will say no more about that.

We have debated at some length, today and previously, the amendments tabled by the Chairman of the Intelligence and Security Committee, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), which contain a number of proposals. I am grateful for his contribution to the debate, generally and, more specifically, today. I am pleased that my right hon. and learned Friend has explained the purposes behind new clause 3 and amendment 24. The Government certainly accept in principle the argument that we should provide further restrictions on the use of class bulk personal dataset warrants. We also accept much of the detail contained in the ISC’s draft clause, including reference to the need for restrictions relating to sensitive personal data.

I have dealt with the issue about which—as my right hon. and learned Friend knows—we are least happy, namely the timescale within which these matters are reported to the ISC. I think that more could be done, and I think that a protocol of the kind that my right hon. and learned Friend described in his brief contribution might provide a way of doing it. We will take that suggestion away and do further work, in the spirit to which he referred.

My hon. Friend the Member for Stevenage (Stephen McPartland), who is no longer present but who is an old friend of mine, raised issues relating to modifications. I want to make it absolutely clear that in all modifications, a warrant will require the same double lock. Yesterday and in Committee, the hon. and learned Member for Holborn and St Pancras argued that a double lock that applies when a warrant is originally sought must apply to modifications. I entirely accept that point. My hon. Friend made it again today, and I can assure him that the double lock will apply to bulk powers as well.

The hon. and learned Member for Holborn and St Pancras raised the issue of medical records. It is right for particularly sensitive data to be handled in a particularly sensitive way, and I am pleased that he noted the Government amendment which, I think, deals with that. We will consider the technical points that he raised about social care and mental health, but I am confident that we can find a way forward.

I do not want to delay the House unduly—as you know, Madam Deputy Speaker, that is not my habit, and we have other important matters to consider—but I do want to say that one of my regrets is that we have not had more Proust today, or during our consideration of the Bill more generally. Marcel Proust said:

“The only real voyage of discovery consists not in seeking new landscapes, but in having new eyes”.

The consideration of this Bill has been extensive. Three reports before its publication in draft, three parliamentary Committees once the draft Bill was published, and a very thorough examination in Committee following Second Reading have allowed us to have “new eyes”, and to see more clearly both the need to secure our people and counter the very real threats that we face, and the need to deal with the checks and balances which ensure that the powers we give those who are missioned to keep us safe are used proportionately, and only where necessary. Achieving that balance—a balance that lies at the heart of the Bill—has required the House to take a balanced approach. As I said a few moments ago, Parliament is at its best when it puts national interest beyond party interest, and this is common ground for the common good.

[Anne McLaughlin]

I have to say that the Minister’s tone does not really reflect that which some of his hon. Friends used when addressing this debate. I have felt completely patronised at times today, because people on the Government Benches have been shouting, “You don’t understand this Bill.” Just because we take a different view or come at things from a different angle does not mean that we do not understand. The right hon. Member for Rutland and Melton (Sir Alan Duncan) shakes his head, but it was offensive to have to listen to that nonsense, particularly when it was directed at my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who is a learned QC and certainly does know what she is talking about.