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Investigatory Powers Bill – in the House of Commons at 3:45 pm on 1st November 2016.

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Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

The Investigatory Powers Bill will ensure that the police and the security and intelligence agencies have the vital powers they need at a time of changing threats and rapidly evolving technology. It will place those powers on a clear statutory footing and achieve world-leading oversight. It will leave no doubt about how seriously we value privacy and individual rights in this country.

Let us not forget why those powers are so important. Every day, our law enforcement and security and intelligence agencies use those powers to investigate serious crime and collect evidence to convict offenders. They are particularly crucial in combating human trafficking and child exploitation. For example, in January 2009, Operation Retriever, an organised crime investigation in Derby, uncovered one of the most serious cases of child sexual abuse in recent times, involving multiple offenders and multiple victims.

During the investigation, officers uncovered an elaborate and hideous campaign of sexual exploitation directed against teenage girls who were groomed by people they thought they could trust, and were driven around the midlands to houses, hotels and bed-and-breakfasts, where they were raped, often violently. One of the officers involved in the investigation described it as

“a campaign of rape against children”.

The investigation team used a combination of covert policing and communications data, such as mobile phone records, to link group members and their victims to each other, to phone handsets and to downloaded images and videos of sexual abuse taking place. In that investigation alone, 27 female victims aged between 12 and 18 were identified. Communications data evidence helped to secure the convictions of nine defendants. One of the offenders is serving at least 11 years for rape, sexual assault, sexual activity with a child, perverting the course of justice, aiding and abetting rape, false imprisonment and making child pornography. Another is serving at least eight years for rape, sexual assault and other sexual activity. Yet another is serving three years for the supply of cocaine.

Those men could still be on our streets, exploiting innocent children, without the police having access to the important intelligence that communications data provide. It is essential that we give the police the tools they need to investigate and prevent awful crimes such as these. That is what this Bill will do.

I am pleased that the Bill has commanded cross-party support, and I am grateful to all those who helped, in the spirit of consensus, to produce the Bill that we have before us. On Report, the former shadow Home Secretary, Andy Burnham, set out his party’s position:

“We have supported the principle of a modern legal framework governing the use of investigatory powers, recognising that as communications have migrated online, the police and security services have lost capability”. —[Official Report, 6 June 2016;
Vol. 611, c. 952.]

On Third Reading the right hon. Gentleman went on to say:

“The police and security services do incredibly difficult work on our behalf and we thank them for it. Their job has got harder as both the level of the threat has risen and the nature of communication has changed in the modern world. To fail to respond to that would be a dereliction of our duties to them;
it would also fail our constituents. The Bill is ultimately about their safety, the safety of their families and their privacy. I think we can look ourselves in the mirror tomorrow and say we have done our level best to maximise both.”—[Official Report, 7 June 2016;
Vol. 611, c. 1148.]

The right hon. Gentleman was right. This has been a truly collaborative effort, of which both we and the Opposition can be proud. I note that the Government’s approach has attracted support from some of the Liberal Democrats in the Lords, although Liberal Democrat Members are not present here.

We have before us today a substantial number of changes agreed in the other place—evidence of constructive engagement from all sides to further improve this landmark legislation. Let me list the main changes. Responding to concerns raised by the former shadow Home Secretary, we have replicated changes agreed in this House throughout other parts of the Bill, including protections for trade union activity and amendments to the test applied by judicial commissioners when reviewing warrants, notices and authorisations under the Bill.

We commissioned an independent review by the independent reviewer of terrorism legislation, David Anderson QC, which comprehensively endorsed the necessity of the bulk powers. As a consequence of that review, we have included provision for a technical advisory panel to advise the Investigatory Powers Commissioner and the Secretary of State on the impact of changes in technology. We have added a sentencing threshold for access to internet connection records so that they could not be used to investigate minor crimes. We have added extra protections and safeguards for journalists, lawyers and parliamentarians.

We have addressed issues raised by the Intelligence and Security Committee by giving the Committee the right to refer matters to the Investigatory Powers Commissioner to investigate on behalf of this House; adding a requirement for the commissioner to report on thematic warrants and operational purposes; introducing a criminal offence for the misuse of bulk powers; bolstering safeguards surrounding the modification and renewal of warrants; and clarifying provisions relating to class BPD warrants, improving safeguards, and prohibiting the retention of medical records in bulk personal datasets held under class warrants.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

May I put on record my appreciation for the way that the Minister listened to the representations made by the Intelligence and Security Committee in this matter? It has proved to be a most constructive dialogue and I am extremely grateful to him for having taken on board and acted on the vast bulk of the recommendations that we put forward. May I raise one matter? On the issue of thematic warrants, I know that the Government, for very understandable reasons, were unable to move on some of the safeguards that the Committee wanted. Will the Minister give an undertaking that he will keep that under review as we see how the measure operates in practice?

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I am grateful to my right hon. and learned Friend for his comments. Although it would be nice to take the credit, that belongs to my hon. and learned Friend the Solicitor General, who steered the Bill through Committee, and the present Prime Minister, who helped shape and deliver the Bill. I have merely come in at the end, but will take some of the credit nevertheless.

Of course we will keep the matter under review, as my right hon. and learned Friend the Chair of the Intelligence and Security Committee, asked. I do understand the concerns about thematic warrants. I know that he will keep the matter under review and the Government will do so as well.

We have made a number of minor and technical changes to improve the clarity and consistency of the legislation. Finally, in the absence of legislative consent from the Northern Ireland Assembly, we have removed measures that would have brought oversight of devolved investigatory powers in Northern Ireland within the remit of the Investigatory Powers Commissioner.

Many amendments have been accepted and we have worked together to produce the Bill that is before us today. I hope it will command the support of the whole House.

In closing, I remind the House that one of the aims of this legislation is to update investigatory powers for the digital age. It is worth contemplating briefly the consequences that would have come from failing to achieve that aim. Police forces across the country are increasingly struggling to pursue investigations because they cannot uncover crucial information as criminals’ activity moves online. Alan Wardle of the National Society for the Prevention of Cruelty to Children told the Public Bill Committee that

“the police’s ability to investigate and prosecute some of the high-profile crimes we have seen in recent years—online grooming of children and the number of people who are viewing illegal images of children online, which has grown exponentially—is increasingly dependent on communications data. I think it is vital that this Bill ensures that the police have the powers and capabilities to continue to do that.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016;
c. 34.]

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.

Photo of Diane Abbott Diane Abbott Shadow Home Secretary 4:15 pm, 1st November 2016

Like the Minister, I came to the Bill towards the end, but I am happy to claim credit just like him. Let me say right at the beginning that the Bill has enjoyed, and continues to enjoy, cross-party support, but the House will forgive me if I put on record some of the reservations still raised by important stakeholders.

The first thing I would like to remind the House of is that there is a case before the European Court of Justice that involves the Home Secretary. It is brought by, among other distinguished persons, the deputy leader of the Labour party, my hon. Friend Mr Watson. It relates to the predecessor legislation to the Bill—the Data Retention and Investigatory Powers Act 2014. It seems clear from the interim judgment delivered by the advocate-general on 19 July this year that key sections of DRIPA will be struck down. It is clear that the Bill has even more widely drawn powers and has fewer safeguards and mechanisms for judicial oversight. The logical conclusion —we cannot say at this point what will happen—is that the powers in the Bill may well be among the shortest-lived in parliamentary history, as they may be struck down at the European Court of Justice, and that court proceedings would almost immediately follow Royal Assent.

Among the issues that have been raised with us during the passage of the Bill by stakeholders are access to internet records and the nature of the judicial safeguards; the protection of data, and the rights of journalists to protect their sources; the lack of powers to refer issues to the Investigatory Powers Tribunal; and insufficient checks on the sharing of data between agencies. There is no right of disclosure to the target and not necessarily a duty to provide information to the service provider. There is also the concern—it may be a theoretical concern, but it is a real one for many stakeholders—about the potential abuse of these investigatory powers by state agencies.

A wide number of interest groups and stakeholders have told Opposition Members that the powers in the Bill are perhaps a little disproportionate in relation to the objectives. The Society of Editors, the National Union of Journalists, with the backing of the TUC, and many others concerned with the freedom of the press have raised valid and important objections to the Bill, which, despite the best efforts of Members on both sides of the House—particularly my hon. and learned Friend Keir Starmer—have not been fully addressed in the parliamentary process. Among the issues that have been raised with me is the ability of journalists to protect their sources.

Another concern, which should also be a concern for Members of the House, is the protection of whistleblowers, who have played an important role in public life, whether at Addenbrooke’s or at other hospitals. The concern is that public bodies, by being able to identify internet records—without, as we know, examining the content—may be able to identify the whistleblowers. There is a measure of judicial oversight. However, many stakeholders have said to us that judicial oversight of data access, gathering and retention is not as strong as they would like. The absence of review proceedings has been raised with us as another troubling aspect of the Bill.

Photo of Steve McCabe Steve McCabe Labour, Birmingham, Selly Oak

Does my hon. Friend agree that despite these reservations, the almost 300 amendments that the Government were forced to table on Report give us much greater safeguards in the exercise of these powers and a much greater capacity to scrutinise whether they are being used properly, with clear avenues for challenge where people are tempted to misuse them, all of which was absent before these changes?

Photo of Diane Abbott Diane Abbott Shadow Home Secretary

I am grateful to my hon. Friend for his, as usual, very wise observation. There is no question but that the amendments that the Government have been forced to table, and the work of Members on both sides of the House, have made this a much better Bill than the one that was originally presented to this House.

Photo of Andrew Murrison Andrew Murrison Conservative, South West Wiltshire

It is not a question of being forced. The hon. Lady may recall that this measure was subject to a Joint Committee on the draft Bill. There can be no Bill in recent memory that has had more scrutiny than this one. Will she also note clause 232, which establishes a review of this measure after five years—a most unusual mechanism for a Bill of this sort—and give the Government credit for doing everything in their power to reconcile the need to protect our liberties with the need to protect the press?

Photo of Diane Abbott Diane Abbott Shadow Home Secretary

Right at the beginning of this debate, I made a point of acknowledging the very hard work of hon. Members on both sides of the Chamber, including hon. Friends of mine, but perhaps the hon. Gentleman was not here at that stage. The first thing I did was to acknowledge the diehard work of Members on both sides of Chamber. There is no question but that this is a better Bill than the one that was originally presented to us. We are very grateful, and, more importantly, the stakeholders are very grateful, for the possibilities for a review, but I would not be performing my role as a member of Her Majesty’s Opposition if I did not put on the record the reservations that still exist among some of our stakeholders.

A number of stakeholders, campaigning groups and other bodies have expressed their continuing dissatisfaction with elements of the Bill. They include Amnesty International, Article 19, Big Brother Watch, the Centre for Investigative Journalism, Don’t Spy On Us, English PEN, Index on Censorship, Labour Campaign for Human Rights, Liberty, the National Union of Journalists, OpenMedia, Open Rights Group, PEN International, Privacy International, Scottish PEN, the Society of Editors, and the World Wide Web Foundation. In addition, I have held meetings with the TUC and a number of other trade unions that still have concerns about this Bill. I would be grateful if the Minister could explain why, despite all the efforts that have been made to improve the Bill, there continue to be concerns among such a wide array of stakeholders.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

Perhaps I could pick up on some of the concerns of Liberty. We will all have had in our inboxes this morning a letter from Liberty. The concerns expressed in it are, I am afraid, simply wrong. In the third paragraph, Liberty’s policy officer says:

“Bulk powers allow for…surveillance…The much vaunted ‘double lock’ system of authorisation in fact allows the Secretary of State rather than judges to authorise warrants.”

That is incorrect; in fact, the Secretary of State and a judge will authorise a warrant. Perhaps Liberty is incorrect in some of its assertions about why it is unhappy and should look at the Bill, as amended, that has been before this House.

Photo of Diane Abbott Diane Abbott Shadow Home Secretary

I have no doubt that stakeholders will look at the amended Bill, and if it returns to us from the Lords, there will no doubt be another opportunity to tease out some of these issues.

This Bill has all-party support and that is significant, because getting the balance right between updating legislation to deal with an internet and high-tech age and defending the civil liberties of subjects is very important, and this House is best placed to do that. We have been grateful to Ministers for being willing to listen to Members in all parts of the House in seeking to improve the Bill.

Photo of Lucy Frazer Lucy Frazer Conservative, South East Cambridgeshire

Privacy is an essential right in a democratic society. It is a basic civil right, protected by statute, so it must follow that any incursion into that right should be limited and carefully considered. I want to make three short points to show that, through the passage of the Bill through this House, that necessity for considered judgment has been respected.

First, a significant amount of information

“was given when the Bill was first tabled…including more information about the security services than we have ever seen in parliamentary papers.”—[Official Report, House of Lords, 11 October 2016;
Vol. 774, c. 1797.]

Those are not my words, but the words of the Liberal Democrat peer Lord Carlile during last month’s debate in the other place.

Secondly, as the Bill has passed through the House and through Committee, the Government have listened. Again, that is not my view, but that of Lord Janvrin, the Cross-Bench peer who opened the debate in the other place by stating that the

“changes have introduced significant improvements in the protection afforded to privacy.”—[Official Report, House of Lords, 11 October 2016;
Vol. 774, c. 1797.]

Thirdly, this is a Bill that

“stands not only for transparency but for the introduction of significant new safeguards”, which is a view expressed by David Anderson in paragraph 1.20 of his most recent report on bulk powers.

It is right that we think carefully when we look to limit the right to privacy, and this Government have done so. Importantly, we must also remember why we are passing this Bill. We are doing so to protect and ensure the safety of our citizens from illegal acts, including serious crime, and to fight international terrorism; and we are doing this in a fast-moving environment where we have to keep pace with technology.

Andrew Parker, the head of MI5, told The Guardian this morning that the number of terror plots thwarted in the past three years stands at 12. He said that

“the tempo of terrorist plots and attempts is concerning and it’s enduring. Attacks in this country are higher” than he has experienced in the rest of his 33-year career at MI5. The Bill’s provisions are designed to ensure that our security services have the tools that they need to protect our citizens from those attacks.

As David Anderson wrote in his report, which was published in August:

“The bulk powers play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield. Where alternative methods exist, they are often less effective, more dangerous, more resource-intensive, more intrusive or slower”.

The Bill strikes a balance between privacy and security, and it does so because the Government need the tools to fight external threats to the nation. Those tools ensure our safety and our freedom.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

Unlike the Minister and the shadow Home Secretary, but like Lucy Frazer, I have been with this Bill since the beginning and it has been an interesting journey. As I said earlier, much was promised from the Lords when the Bill left this House, and, as the shadow Home Secretary has said, people had considerable concerns at that time about its intrusion into civil liberties and the security of data.

It is a matter of regret that the Lords amendments as a whole have not lived up to expectations. However, some improvements have undoubtedly been made in the safeguards afforded by the Bill, as a result of Government amendments in the Lords. Although the SNP does not believe that they go far enough, we will support them because they improve the safeguards. The Minister has listed some of them. I am particularly happy with the taking up of the recommendation for a technical advisory panel; the imposition of some restrictions on access to bulk personal data sets; and the inclusion of the threshold for internet connection records. I also particularly welcome the Government amendments to clause 233, to ensure that the Scottish Government will be provided with the means to engage with the work of the judicial commissioners relating to the devolved powers in Scotland.

Photo of Suella Fernandes Suella Fernandes Conservative, Fareham 4:30 pm, 1st November 2016

I am pleased to note that Joanna Cherry and I have made similar sartorial choices today. Although we disagree on many other things, it seems we agree on the important things. Does she agree that the legislation is essential, because without it the expiration of existing legislation will create a legal vacuum?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

I agree that the legislation is essential. The SNP believes that it is important to give the security services and, indeed, law enforcement necessary and proportionate powers. I welcome, as I have said repeatedly in this House, the attempt in the Bill to codify the law and to provide an enhanced oversight regime. However, I will not demur from the position that I have held throughout, which is that in some respects the Bill does not provide sufficient safeguards.

The SNP and many other stakeholders mentioned by the shadow Home Secretary remain very concerned about allowing significantly unfettered collection of, and access to, communications data including internet connection records. We also oppose far-reaching bulk powers to acquire the personal and private data of our constituents when a proper case for the necessity and proportionality of those powers has yet to be made.

I consider it a matter of deep regret that the review of bulk powers by David Anderson QC reported not to this House, but to the House of Lords. This House—the democratically elected and accountable Chamber—has not had an opportunity to debate that review. It is an excellent review as far as it goes, and I would not dare to undermine much of what it says. It is what is missing from the review that is important. It makes out a case that bulk powers can be of use to the state, but it does not address the necessity and proportionality of those powers. Those matters are yet to be addressed, and we will not get to debate them here. As the shadow Home Secretary said, they are very likely to be the subject of litigation in the future, and they are likely to be addressed by courts in the United Kingdom and in Europe—for as long as we have the sense to remain part of those European systems.

Photo of Andrew Murrison Andrew Murrison Conservative, South West Wiltshire

On the question of proportionality, does the hon. and learned Lady agree that the proposals must be put into some sort of context? As Lord Rooker pointed out yesterday, the problem is that we have a commercial sector with a large number of commercial providers who are busy harvesting data all the time in order to advertise things to us. Since the powers that the state is taking to itself are similar in some respects, it is important to bear that in mind when trying to ensure that we have some level of proportionality.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

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 all of them—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.

Photo of Robert Buckland Robert Buckland The Solicitor-General

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?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

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 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.

Photo of Robert Buckland Robert Buckland 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.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

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.

Photo of Suella Fernandes Suella Fernandes Conservative, Fareham

Will the hon. and learned Lady give way?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

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.

Photo of Robert Buckland Robert Buckland 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.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

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 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.

Photo of Suella Fernandes Suella Fernandes Conservative, Fareham

This landmark legislation enables our security, intelligence and law enforcement services to continue the intelligence gathering, analysis and code-breaking that are essential for the security of our country in a digital age. I was pleased to support the Government on Second Reading, and am even happier to do so today.

The Investigatory Powers Bill has been subject to intensive scrutiny. Along with many Members in the Chamber—including my hon. Friends the Members for North Dorset (Simon Hoare) and for South West Wiltshire (Dr Murrison), my hon. and learned Friend Lucy Frazer and the Solicitor General—I was privileged to sit on the Committees for that scrutiny. I was a member of the Joint Committee responsible for pre-legislative scrutiny of the draft Bill. We considered 1,500 pages of evidence, interviewed numerous experts and campaigners, and made 86 recommendations to the Government.

Following that, there was a refreshingly collaborative cross-party approach during the Bill’s passage through Parliament. The Bill has benefited from the expertise and constructive criticism of many hon. Members, including the then Labour party spokesman on the issue, Keir Starmer, a former Director of Public Prosecutions.

Throughout that process it has emerged that our intelligence and security agencies depend upon the acquisition of bulk data—that is, information acquired in large volumes and used, subject to special restrictions, to acquire vital and unique intelligence that they cannot obtain by other means. They need the power to intercept messages and will not be able to do their job without contextual intelligence, provided in the form of internet connection records.

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 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 Joanna Cherry said, supermarkets, search engines and mapping devices all track our shopping choices, our interests and our movements, and use that 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.

Photo of Huw Merriman Huw Merriman Conservative, Bexhill and Battle 4:45 pm, 1st November 2016

I am pleased to follow my hon. Friend Suella Fernandes and to speak in support of the Bill.

In March 2016, David Anderson, QC suggested that this Bill

“charts a bold route forward—and gets the most important things right”.

He went on to say that it

“restores the rule of law and sets an international benchmark for candour.”

He suggested at that time that some matters remained to be resolved, but as the Government’s support for these Lords amendments demonstrates, there has been cross-party co-operation and support both in this House and in the other place. The Bill is all the better for it.

This relative consensus is well demonstrated by the remaining amendments, just rejected, relating to press regulation. There were, of course, concerns prior to my election to this place, that a Bill of this type could be construed as a “snoopers’ charter”. The fact that we have just had a debate on Leveson speaks well of the progress made on this Bill. The fact that we have got to this positive position is, in my view, in no small part due to the Government’s acceptance of suggestions made across the political divide and their taking of the three independent reviews as a starting-point for this legislation.

It is worth considering that the first report, “the Anderson report”, called for a new law that would be both comprehensive and comprehensible. The second report, from the Intelligence and Security Committee of Parliament, said that the

“legal framework has developed piecemeal, and is unnecessarily complicated.”

That, it said, had resulted in a

“lack of transparency, which is not in the public interest.”

The third report, produced by the Royal United Services Institute, called for a

“radical reshaping of the way that intrusive investigative techniques using the internet and digital data are authorised”, and said that it should be

“subject to judicial scrutiny”.

The Bill delivers on all those fronts. It gives our law enforcement and intelligence agencies the power that they need to keep us safe. It brings together all the powers that are already available to those agencies before they are due to expire following the judicial review of the Data Retention and Investigatory Powers Act 2014, and gives them additional powers to catch up with new technology and the web. It introduces a double lock for the most intrusive warrants, providing judicial oversight and creating an investigatory powers commissioner. It not only delivers comprehensive legislation with safeguards, but gives the security agencies the power to keep up with technology that is being used by those who seek to do harm to our constituents.

That takes me back to the words of David Anderson, QC. Last month, in Strasbourg, he spoke to the Committee on Legal Affairs and Human Rights, a Committee of the Parliamentary Assembly of the Council of Europe—of which I am a member—about these powers, and about the threat posed by terrorists across Europe. During the same session, the threat was brought home most powerfully by another speaker. This lady, a Parisian, had lost her daughter to the terrorists who were responsible for the Bataclan massacre in Paris. Her words, and her pain, were incredibly moving for all who listened. She demonstrated to us how difficult her life had become, and also the terror that her daughter had experienced in her final hours. That brought home to me the need for us in this place to do everything we can to ensure that we never have to hear testimonies like that from our constituents across this nation, and it is on that basis that I shall be very pleased to see the Bill become law.

Photo of Ben Wallace Ben Wallace Minister of State (Home Office) (Security)

I wish to place on record our gratitude to the Labour party, the Liberal Democrats, the Scottish National party, and the Opposition Front Benchers—Andy Burnham and Keir Starmer and, in the other place, Lord Murphy of Torfaen and Lord Rooker—for their contribution to making the Bill what it is today. We must ensure that it proceeds in a spirit of consensus, and I therefore approve of the provision in clause 232 for a review of the Bill in five years’ time. Obviously I must also express my gratitude to the Prime Minister, who helped to shape the Bill and to introduce the important powers that it gives our security services and police to help them to do their job.

I thank my hon. and learned Friend the Solicitor General, my right hon. Friend Mr Hayes—the former Security Minister—and the Chairman of the Intelligence and Security Committee, my right hon. and learned Friend Mr Grieve. They, too, have made a considerable contribution. I also thank the SNP, including Joanna Cherry, although she seemed rather cynical about the Bill in her more recent contributions. I recognise that the support of the SNP goes a long way towards the application of the Bill in the United Kingdom; it is important that we all embrace its aims.

A long time ago, in a different life, I did some of this stuff when there was no regulation, before the introduction of the Regulation of Investigatory Powers Act 2000. We are now in a much healthier place: a place with scrutiny, oversight and an understanding by all of matters that, in the old days, we did not even avow had happened. We should not underestimate the distance that we have come since days gone by. We have come a very long way since then, and I am proud of what the Bill gives us, and gives the men and women who need it in order to keep us safe.

Having had conversations with colleagues overseas, I know that people are envious of this Bill. We should not forget that, at this moment, there are people in Germany and France who face a much greater threat to life and liberty. There are forces of law and order that are struggling to come to terms with the modern threat, sometimes with legislation that is out of date. I think that by introducing this Bill we have brought ourselves up to date, and that we are now in a position to tackle the threat. I am grateful to the whole House, and to members of all its political parties, for supporting the Bill.

Lords amendment 1 agreed to.

Lords amendments 2 to 10, 16 to 337 and 340 to 377 agreed to.

Ordered, That a Committee be appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments;

That Ms Diane Abbott, Victoria Atkins, Robert Buckland, Joanna Cherry, Nic Dakin, Andrew Griffiths and Mr Ben Wallace be members of the Committee;

That Mr Ben Wallace be Chair of the Committee;

That three be the quorum of the Committee;

That the Committee do withdraw immediately.—(Christopher Pincher.)

Committee to withdraw immediately; reasons to be reported and communicated to the Lords.