PARLIAMENTARY DEBATE
Investigatory Powers Bill - 1 November 2016 (Commons/Commons Chamber)

Consideration of Lords amendments.

Prior to Baroness Hollins’s amendments on Report in the Lords, clause 8 provided a basis for individuals to bring civil claims in relation to the misuse of private telecommunications systems. That might include, for example, an employer misusing a corporate network to spy on his or her employees. That is an important safeguard, which was argued for forcefully and convincingly by a number of Members of this House, including the hon. and learned Member for Edinburgh South West (Joanna Cherry). It was in large part on the basis of her arguments that the Government amended the Bill to include this provision.
Let me address the point of order raised by my hon. Friend the Member for North East Somerset (Mr Rees-Mogg). One of the Government’s contentions on why this amendment should be rejected is that it goes against the grain of legislating over and above the will of the Scottish Parliament. As a former Member of the Scottish Parliament, I recognise the importance of the Sewel motion. I urge SNP Members to join us in voting down the amendment, because they cannot pick and choose when devolution is or is not appropriate. Do they wish us to go through the procedures of the legislative consent motion and give the Scottish Parliament the courtesy it deserves, or are they saying that they accept in principle that there are some occasions when we could legislate without a legislative consent motion in the Scottish Parliament? I look forward to the reply from the hon. and learned Member for Edinburgh South West.

Just last week, the Press Recognition Panel produced its first annual report, which stated that the Leveson system has not even been brought into effect. Only after section 40 is commenced will the system be in place. The PRP was highly critical of the Government’s failure on section 40 and described its non-commencement as an interference in the freedom of the press, because it allowed the Government to hold section 40 commencement as a sword of Damocles over the press.
Just last Monday, the Secretary of State for Culture, Media and Sport indicated that she had no intention of commencing section 40. The following day, newspapers ran stories saying that the Government had ditched section 40, crediting a Government source. The Minister cannot be surprised, therefore, that we are pressing the issue. It is reprehensible that the Government are resisting implementing what is widely regarded as a key provision of the Leveson inquiry. While the Government refuse to fulfil their commitments, we will not back down from supporting measures to assist victims of press abuses and their families.

The third interesting thing about the debate is that we have spent the entirety of it talking about the regulation of the press, when we are debating a Bill that is called the Investigatory Powers Bill and is about regulating the work of the security services. That work is very important. The Bill needs to be passed, as I understand it, by the end of the year.
I will not support Lords amendment 15. I will support the Government, for four clear reasons. First, as the Minister put it—I could not put it any better—it is the wrong amendment, to the wrong Bill, at the wrong time. This is not a Bill on press regulation. [Interruption.] I do not know where the hon. Member for Hackney North and Stoke Newington is getting her instructions from, but clearly having taken the phone call for which she has left the Chamber she will come back and no doubt elucidate the complex issue of Scottish and Westminster relations for us.

To be honest, this is a question of keeping faith. Promises were made to the victims of phone hacking and press intrusion: people such as the family of the murdered schoolgirl, Millie Dowler, whose voicemail messages were hacked by the News of the World, giving her family the desperate false hope that their daughter was still alive; people such as the family of Madeleine McCann, whose mother Kate said she felt mentally raped by her treatment at the hands of the press.
All that means that we must have Leveson 2. It was never meant to be that there would be a decision on whether Leveson 2 would happen once the legal cases were complete; it was meant to be that Leveson 2 would happen once those cases were out of the way. Commencement of section 40 was also intended. There is no earthly reason why it could not have been commenced already. What everybody wants is redress—true redress—because when it comes to privacy and correction, it is phenomenally difficult to get “no win, no fee” agreements with lawyers. The awards that might come at the end are relatively minor, and lawyers simply do not want to take the risk.
There is a real danger now, even more than there was five years ago, that those intruded upon—ordinary members of the public and the victims of crime—will become the victims of intrusion all the more, without ever having had any opportunity for redress. People have said to me many times, “You can always go to the courts, if you have been libelled,” but the victims of Hillsborough—both those who died and the groups that were treated to calumny by the press—had no opportunity to go to the courts to seek redress. That is why we needed change.
I want a robust, naughty, scabrous and vibrant press. I even expect it to break the law on occasion when it is chasing down corruption and wrongdoing—as long as it really is in the interests of the public. I also want ordinary members of the public to get a real right of redress, provided impartially, independently and at minimal cost to them. The only incentive we have to persuade IPSO to become a better and more independent body that actually provides that right of redress is section 40 of the Crime and Courts Act 2013. The Government have shown themselves repeatedly determined not to commence it, so of course the House of Lords is tweaking the Government’s nose and saying, “Come on, get on with it”. Conservatives promised it—

Lords amendment 15 disagreed to.
Lords amendments 338 and 339 disagreed to.

Let me give an example. In 2012, a Cambridgeshire constabulary investigation into sexual exploitation of a number of vulnerable children in Peterborough relied heavily on communications data. The operation resulted in sentences for 10 men, for a total of 114 years and nine months, covering the offences of rape, sexual activity with a child, inciting child prostitution and making indecent images of children. Call data were used to identify victims and offenders, and allowed investigators to establish links between them. The police were able to demonstrate call patterns linking the offenders with each other and with their victims. Subscriber data were obtained to attribute devices to offenders, and location data were used to demonstrate the movements of the offenders.
If those communications had been made using internet-based telephone services, rather than traditional phone calls, it is likely that police would not have been able to successfully disrupt this awful activity. The Bill goes a long way towards plugging this capability gap. In doing so, it safeguards the most vulnerable in our society, and it gives victims of crime a greater chance of achieving justice. That is why the Bill is so important.

The threats we face are rapidly changing and multidimensional. At home, overseas and online, modern terrorist groups are mercurial and elusive, deploying instant messaging, WhatsApp, email and text to avoid detection, so that the prospect of attacks such as those in Paris and Brussels happening here in the UK is a strong possibility. Our intelligence services are regularly working to thwart plots against the UK—there were seven in 2015—directed by terrorists in Syria and inspired online by Daesh’s intricate use of social media. Meanwhile, paedophile rings use secret Facebook groups to share indecent photos. The police are constantly trying to trace vulnerable missing people. Privacy settings and encryption, while empowering, enabling and essential for the law-abiding citizen, are abused by serious fraudsters and others to create a cloak of invisibility for the worst misdemeanours. These networks are bewildering and often sourced by companies based overseas, placing them increasingly beyond the reach of the police and security services. As that threat evolves, so must our capabilities.
I support the Bill because it includes provisions that oblige internet and phone companies to store internet connection records of websites visited for 12 months. It enables the security services and police to intercept and track electronic communications and mount IT attacks, known as equipment interference, under a warrant authorised by the Home Secretary and an independent judge. It empowers our services to access and analyse bulk data, a tool that has become more important than ever before.
Critics argue that the Bill is disproportionate. They say it goes too far and that the powers avowed are unnecessary. In doing so, they misunderstand the nature of modern security and law enforcement. Without access to communications data, the National Crime Agency would not have had the evidence to prosecute paedophiles who had been visiting websites with indecent images of children. Without interception intelligence, MI6 could not have detected and disrupted numerous plots to attack the UK being planned by individuals based abroad. Without access to bulk data, GCHQ would not be able to uncover cyber-attacks against the UK.
I can see why, in the post-Snowden era, conspiracy theories abound. However, they are unsustainable in this context. For these powers, while wide-ranging, are transparent and subject to robust safeguards. First, multiple independent reviews, by David Anderson, QC, the independent reviewer of terrorism legislation, the Royal United Services Institute and the Intelligence and Security Committee, have concluded that our intelligence agencies are categorically not engaged in mass surveillance. The tools are used scrupulously and are subject to strict checks and rigorous oversight.
Secondly, the Bill creates a completely new system of warranting. A double lock on ministerial authorisation of warrants means that both judges and Ministers will consider the evidence and merits of granting permission for such powers to be used. Only where it is necessary and proportionate will a warrant be issued. It has been some time since I hung up my wig and gown, but any lawyer will say that the level of scrutiny imported in the wording of the Act is critical. We are not looking at Wednesbury unreasonableness, but a higher level of scrutiny —an anxious level of scrutiny involving proportionality.
The test for proportionality under the ECHR is set out in a four-stage test. First, the judge will ask themselves whether the objective of the means is sufficient to justify a limitation of the right. Secondly, are the means rationally connected to the objective? Thirdly, could a less intrusive measure be used to achieve the same objective? Fourthly, the decision maker will balance the effect on rights against the importance of the objective. That is trite law, but it is very significant because it means that a considerable level of scrutiny will be employed to analyse whether the warrant is justified.
In our evidence sessions, Professor Christopher Forsyth, professor of public law at the University of Cambridge, said that this test was appropriate and that the Secretary of State and the judicial commissioner are assessing important aspects of the warranting process. Importantly, there will be different considerations to take into account. For example, in a diplomatic setting, it is not appropriate for the judge to have all the decision-making power, for there might be extraneous issues that are not within the mind of the judge that need to be taken into account.
Transparency runs through the Bill. All the powers are already legitimised by Acts of Parliament, while article 8 of the Human Rights Act acts as a limit on the level of intrusion into someone’s private life. Warrantry is scrutinised and reviewed. The Intelligence and Security Committee, independent reviewers and the judiciary through the independent commissioner and the Investigatory Powers Tribunal all provide challenge and supervision. Trust is the golden thread running through the viability of the new legislation. Some things necessarily need to remain secret, but notwithstanding that need for secrecy, the public’s trust, a sound legal basis and opportunity for impartial challenge are important for ensuring long-term robustness.
Finally, I would like to share some of my thoughts on privacy. As threats and capabilities evolve to meet the pace of technological change, so must our notions of privacy. The more we live our lives online, the more we routinely give up our privacy. As the hon. and learned Member for Edinburgh South West (Joanna Cherry) said, supermarkets, search engines and mapping devices all track our shopping choices, our interests and our movements, and use the data for commercial purposes. Every time we click “agree” to the small print on these ubiquitous services, we make a concession, and we allow our data to be gathered by private companies.
Critics of the Bill argue that the intelligence and security agencies’ acquisition and use of such data is a disproportionate violation of human rights, despite its national security purpose. Yet every day, in myriad contexts, we all willingly sacrifice our privacy. The more interconnected we choose to be, the less we can pray in aid of absolute privacy. These days, the terrorists, the paedophiles and the serious fraudsters scheme online. Technology that empowers us also empowers them. Yes, we want world-class encryption, but we also want world-class security.
I am proud to support this Bill as a symbol of my trust—my trust in the skill and restraint of the unsung heroes who live their lives in the shadows: the code breakers, the agents, the investigators and the detectives who work day and night to protect us. Subject to weighty checks, these powers epitomise the duty incumbent on all of us as elected Members—the duty to protect the safety of those who put us here and to prevent the threats that we can instead of turning the other cheek and hoping for the best.