Investigatory Powers Bill

Robert Buckland Excerpts

Tuesday 1st November 2016 Commons Chamber

[Joanna Cherry]

I agree with the hon. Gentleman that at some point the House needs to look at the mass harvesting of data by private companies, but there is a big difference between a private company harvesting personal data and the state doing so. A private company does not have the coercive power of the state, and that is the crucial reason why the Bill must be scrutinised so carefully.

It is a matter of the deepest regret that the review on bulk powers did not report to this House and has not been scrutinised in this House. I would not wish the SNP’s position on the Bill to be portrayed as irresponsible, because it is not. It is an attempt to make sure that the Bill fulfils its purpose while remaining lawful and proportionate. As has been alluded to during this debate, the Scottish Parliament has given legislative consent to the consolidating and enhanced safeguard provisions in the Bill, so far as those matters fall within its legislative competence. If Members care to read the terms of the legislative consent motion, which I do not believe was opposed by anyone in the Scottish Parliament, they will see that concern was reiterated about the potential impingement on civil liberties by internet connection record collection and bulk data collection.

I want to correct something that the Minister said about Liberty. Liberty has scrutinised the Bill in detail and provided detailed briefings—one might not agree with them all—on every aspect of the Bill. It is unfair to say that Liberty is mistaken about anything. Liberty is quite correct to say that, in reality, all that the double-lock system means is that a judge will check that the correct procedures have been followed; the Minister will still make the initial decision.

In previous debates, I have said that I would not use the phrase “mass surveillance”, because it is a bit too broad, and I have instead talked about suspicionless surveillance. That is the problem with the Bill: SNP Members and many others with concerns about the Bill believe that surveillance should be targeted and based on suspicion. There is a deal too much suspicionless surveillance in the Bill, even as amended.

[The Solicitor General (Robert Buckland)]

I listened very carefully to what the hon. and learned Lady said about the double lock. Surely the point is that where the judge has the final say, authorisation will not be granted. Will not that fundamental change create the balance that both she and I want?

[Joanna Cherry]

I do not accept that the Government have gone as far as some of us would have liked them to go on the double lock, which is by having full-blown judicial warrantry with the power to look at the merits as well as at the process. However, I accept that this is an improvement on what was originally in the Bill, and its inclusion is a great tribute to the hard work that was done by me and my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands), as well as by Labour members of the Committee. If there had not been such root-and-branch opposition, many of the Government amendments that have finally been passed in the Lords would not be with us today.

[The Solicitor General]

We are all keen to claim the credit, but let us not forget that the Government’s position from the outset was to have a double lock. This important change is very much the result of Government initiative, as well as of the good intentions of Opposition Members.

[Joanna Cherry]

Indeed, but the fine detail on the double lock—that is what enables the Solicitor General to get up and say that it goes as far as it does—was inserted by way of amendment during the Bill’s passage.

[Joanna Cherry]

I will make a little progress, and then give way again, because I do not want to take up too much time.

During the Bill’s passage, SNP Members were pleased to offer our support to the Labour party on its amendment to protect trade unionists going about their lawful activities, but what about protections for other activists and campaigners going about their lawful activities and what about non-governmental organisations and whistleblowers? We should not have unjustified spying on trade unionists, and we should not have unjustified spying on other activists either. Whistleblowers can sometimes be very inconvenient to the Government and to the private sector, but they fulfil an important function and the Bill contains insufficient protection for them.

On the protection of journalists, it is true that significant amendments have been made in the Lords, but it is important to put on the record today that journalists have continued concerns about the provisions in the Bill. They feel that safeguards for journalistic sources should apply across the various powers in the Bill, rather than in their current limited form.

In parallel, although great progress has been made in the Lords on the question of legal professional privilege, some in the legal profession still have concerns about the way in which the Bill approaches it. The way the Bill is drafted may have undermined the central premise on which legal professional privilege is based. However, credit where credit is due: significant progress has been made. I spoke this morning to the Law Society of Scotland, which recognises that the Government have come a long way but is still concerned about these somewhat controversial measures and is very anxious to have post-legislative scrutiny of how legal professional privilege will work in practice.

[The Solicitor General]

The hon. and learned Lady will agree, first, that legal professional privilege has for the first time been averred in legislation, which is very important, and secondly, that further amendments made in the Lords—they were approved by Members such as Lord Pannick—now deal with situations in which legal professional privilege material has been obtained inadvertently. We are now covering even more areas in a circumscribed way, and creating the sort of safeguards that I know she wants.

[Joanna Cherry]

I read with interest the debates in the Lords about legal professional privilege. I noted carefully the approval granted to the measures by Lord Pannick, but I also noted that Lord Paddick made the point that the Bar Council of England and Wales is still not entirely happy about the provisions. That is a matter for the Bar Council, but we should adhere to the Law Society of Scotland’s suggestion of careful post-legislative scrutiny of how legal professional privilege will work in practice.

The two huge concerns I still have about the Bill relate to internet connection records and bulk powers. I have already spoken about the limitations in how we have dealt with the bulk powers review and the fact that, in my opinion and that of many others, it does not deal with the issues of necessity and proportionality.

On internet connection records, I welcome the limited safeguards introduced by the Lords, in particular, the threshold increase on serious crime, judicial approval for data retention notices and prohibition of the retention of third-party data, which we were quite agitated about in Committee. But it is a matter of regret that the Bill still includes provisions dealing with the collection of internet connection records that go beyond anything that any other western democracy has on its statute book and that, as the shadow Home Secretary said, may be of dubious legality.

The fight for our civil liberties concerns about the Bill has been lost in this House, but, as the shadow Home Secretary suggested, it is likely to continue in the courts. Liberty is representing the hon. Member for West Bromwich East (Mr Watson) in a legal challenge to existing surveillance laws. As the shadow Home Secretary said, the Government have ignored the opinion of the advocate-general in the Court of Justice of the European Union on these issues, which was that current provisions lacked vital safeguards. To my mind, that means that when this Bill becomes law it will be open to immediate challenge.

The Bill is certainly the better for its passage through the Lords, although it pains me slightly to say that, as someone who does not approve of the House of Lords—not because I do not approve of a second Chamber but because I think that it should be democratically accountable in some way. However, I do not believe that what was promised of the Lords, and expected by some on the Opposition Benches, on the protection of civil liberties has come to fruition.

It is a matter of the greatest regret that peers supported the internet connection record powers just hours after the Investigatory Powers Tribunal had ruled that the security agencies had been unlawfully scooping up personal confidential information on a massive scale for more than a decade. I was repeatedly told regarding my objections to the Bill that our security agencies are the best in the world and never break the law. I suspect that it is close to the truth that the British security agencies are, if not the best, among the best in the world; but they do sometimes break the law. No one is infallible. We must have safeguards that are real. It is noteworthy, and an indication of the inadequacy of the scrutiny of the Bill that, only hours after the Investigatory Powers Tribunal ruled that unlawful action had taken place, the Lords supported the provisions on internet connection records in their totality.

It seems that the battle has been lost in this House. But given the very real concerns I and others have about the lawfulness of aspects of the Bill, I suspect the battle may be won elsewhere.