Examination of witnesses

Investigatory Powers Bill – in a Public Bill Committee at 12:00 pm on 24 March 2016.

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Nigel Inkster and Lord Evans gave evidence.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire 12:30, 24 March 2016

We will now hear evidence from the International Institute for Strategic Studies and Lord Evans of Weardale. For this session we have until 1 pm. Will the witnesses please introduce themselves for the record?

Nigel Inkster: Good afternoon. I am the director for future conflict and cyber-security at the International Institute for Strategic Studies. I retired from the Secret Intelligence Service at the end of 2006 as the assistant chief and director of operations.

Lord Evans: I am a former director general of the Security Service, MI5, between 2007 and 2013. I was also a member of the Royal United Services Institute independent panel on surveillance. By way of context, I have not had as much time to prepare as I might have done as a result of the fact that I was formally invited to attend only yesterday. I apologise if there are any gaps in my knowledge.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

Lord Evans, I think this one is for you. The bulk powers in the Bill are used differently by different agencies. Some are relied on by the security and intelligence agencies more than others. There is a notion that the bulk powers operate in the sense that there is a power to acquire or hold a great deal of data  and then, at some later stage, there is targeted access on a different threshold, and that those are different safeguards. The reality is that quite a lot happens between those two stages, whether one calls it analytics or anything else. Can you tell us from your experience what happens in practice in that middle bit between first hold and later access?

Lord Evans: This is not a real example, but it might exemplify how one might use the power, certainly from a counter-terrorism point of view and from MI5’s point of view. If you look at the current situation, we are obviously very concerned about what has happened in Belgium and we are very concerned that there might be other IS active units in the UK. We do not want any of them to attack here, but we may not know who they are. In a sense, we are therefore trying to find individuals who might be members of IS and who might threaten us, but we do not necessarily have much information about who they are in specific terms.

For instance, although this is not a real example, using bulk access you might say, “Let’s have a look at all individuals from the UK who are known to have travelled into or out of the middle east and the area around Syria over the past six months. Let’s look at everybody who has a mobile telephone and has been in Syria or northern Iraq, and it’s pinged so we know that there is a telephone in that area.” We might say, “Let’s look for data on individuals who have been in Molenbeek,” because it looks as though quite a lot of the problems have emerged from that particular part of Brussels.

Put all those elements of data together and you will end up with perhaps a few dozen, some scores or one or two hundred individuals or, at least, telephones or something that might be relevant. You might then say, “Let’s take all those phones and see which of those telephones has been in first or second-order contact with known extremists.” Either they have been in touch directly with someone known to be a violent extremist, or they have been in touch with somebody who in turn is in touch with violent extremists. That might refine it down from 150 to half a dozen. Then you might start to think, “Actually, there’s quite a high likelihood, although one cannot be certain, that these half a dozen might be people of security interest in their own right.”

At that point, having gone through those various layers of putting different sorts of data together, comparing, contrasting and seeing what comes out, you might say, “Perhaps for those half a dozen, some more targeted form of surveillance is justified, so we can see who they are.” Once you have done that, if you get the appropriate authorisations, you might then find that some of them are self-evidently not, because they are BBC journalists who have been following the story or similar, so you can put them aside. But you might find that you have one or two who look as though they might be IS activists who have been in touch with the relevant people, so you put some resource into establishing what they are doing and who they are associating with.

That sort of process is very much the way in which MI5 has used these sorts of capability over the last 10 years or so, and it has been an absolutely central part of how we have identified individuals who have been involved in terrorist planning. That is then fed through into more intensive investigations, enabling us with the police to prevent attacks from taking place.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

In a sense, what you have described is a stripping away of the bits you do not want to look at so that you can focus on the bits you do want to look at, in the particular context that you gave.

Lord Evans: Correct.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

Is there any general analysis done to data in order to assist that? All data must be put through a level of analysis to make it easier to carry out the sort of exercise you have just described.

Lord Evans: I cannot think that there is that sort of general analysis. You could imagine starting from lots and lots of data and trying to work your way through a general process to identifying unknown terrorists. That is something that books and so on have talked about, and we have looked at it, but in general, in a non-specific sense, trying to identify patterns that in themselves indicate that somebody is a national security threat is very difficult, because you will have so many false positives. It tends to be used to answer specific operational questions rather than a wholesale review of data ab initio, because if you do that, the chances of finding somebody that you are really concerned about are very low.

In terms of operational reality, the problem for MI5—it certainly was during my time as director general, and I suspect it is still the case—is not finding people with no known connections who have ill intentions; it is finding out more about people who are already associated in some way with violent extremism. It tends to be in support of particular operational requirements and particular investigations, rather than a much more generalised process.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

Can I turn briefly to equipment interference bulk powers? I do not think you were here when David Anderson gave his evidence—this may apply to you as well, Mr Inkster—but he raised a concern about the breadth of those powers. In particular, I think he said that what is called targeted is in fact so wide that it does not really fit with the notion of targeting. That chimes with the suggestion that it is very difficult to define necessity and proportionality in relation to those particular bulk powers. Can you assist the Committee with why, with those bulk powers, there is that problem of definition that David Anderson is concerned about?

Nigel Inkster: I will do my best to assist the Committee, but I should emphasise that I do not have a signals intelligence background and we are talking about capabilities that were in their infancy when I was still part of the intelligence community, so I am looking at this more from an academic perspective and with no privileged access—I no longer have any security clearances.

The issue is that the technologies are evolving so fast and in so many different directions that it can be very difficult to start from a clear perspective of what represents a proportional approach in certain cases. It seems to me that, in this particular set of circumstances, we have to make some allowance for a degree of trial and error—to see whether certain things actually deliver the kind of outcomes that were hoped for, but to be ready to cease using them and move elsewhere if they do not deliver the sort of results that would justify the kind of level of intrusion that we are talking about.

It is very context-specific. For example, if you are looking to try to thwart the attempts by a particular regime to illicitly acquire nuclear weapons capability, your target set defines itself relatively more easily than in certain other cases—transnational terrorism would be one of those where it is much more difficult.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I have one final question for either or both of you. Am I right in thinking that, as far as internet connection records are concerned, although the security and intelligence services would not say, “There are no circumstances in which we’d really need them,” in reality, they are relied on much less by the security and intelligence agencies than by law enforcement, as a separate component?

Lord Evans: It is not impossible that they could be of value in an intelligence sense, but I think the principal driver for using them or for obtaining them is for evidential purposes, and that is made clear publicly. It is principally a law enforcement and evidential issue to inform cases coming before the courts more often than it is an intelligence issue. You could construct a scenario in which it might be of value, but the purpose of putting them in the Bill, as I understand it, is law enforcement and providing criminal evidence.

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

Lord Evans, I want to ask you about the savage murder of Fusilier Lee Rigby and the Intelligence and Security Committee investigation into that. It reported to Parliament that his killers had previously come to the attention of the Security Service on multiple occasions and that, in its view, intelligence reports were mishandled. I think I am right in saying that its inquiry suggested that, if the Security Service had more resources to cover more and lower-priority level targets, the outcome could or would have been different. Would you like to comment on that?

Lord Evans: The Lee Rigby murder took place after my time as director general—not that there is any connection between those two—so I am not very close to the actual facts. In general, one of the critical decisions—certainly for MI5, but it applies by logic to other people on counter-terrorism—is what you do not do. We have more leads which might connect to possible terrorist attack or to violent extremism than we can thoroughly investigate at any one time, so the service has created a quite rigorous triage process that ranks the seriousness of the available information, which is updated on a regular basis, and that drives therefore the allocation of resources.

The difficulty here is self-evident: obviously, sometimes you are working on the basis of fragmentary intelligence or unclear intelligence, so you have to make the judgment as to whether you put resources in to pursuing that or whether you put the resources in to something else. The fact is that sometimes you make a judgment on the available best evidence and then find out later that, actually, the situation was more serious than was apparent. That appears to have been the case with Lee Rigby.

Exactly the same issue came out after the 7 July bombings in London. Mohammad Sidique Khan had appeared in the context of Security Service investigations and police investigations a couple of years before. At that stage, he was assessed to be not a very serious threat and therefore he was put aside so that we could come back to him later while we did other things that were more immediately pressing, but in the interim his activities developed.

It is a problem. The question of course is: how do you get around that problem? The first thing is to use the best quality information available. The second is that the more resources you have, the more yesses you can give as to whether we investigate any one individual, but then you get into a judgment about how many people we think it is proportionate and necessary to investigate. If you doubled the resources of the Security Service again, there would still be cases where you might say, “We don’t have the resources to pursue that.” You ultimately get into a political judgment as to how much resource you want put into this and how much intrusion you have into the activities of people who might not be quite as threatening as others. That is a judgment that has to be made.

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

If the Government had given you more resources for more boots on the ground, would it have been possible for the security services perhaps to have had targeted surveillance on lower priority targets prior to this particular dreadful murder?

Lord Evans: There is no doubt that to some extent intelligence activity in counter-terrorism is scalable. What has happened since 9/11 is that the resources available to the Security Service and the other agencies have increased very considerably under both Governments—or all three Governments, if you want to put it in those terms. We have therefore probably got within the Security Service three or four times as much resource as we had previously.

There has been a very considerable uplift, but it is not just a question of people. Importantly, it is also a question of powers. Your capability to cover and monitor threats is not very often, although it sometimes is, a matter of boots on the ground; it is a matter of the overall toolbox available. One of the attractions of digital intelligence and the sort of powers that are outlined in the Bill is that it enables considerable coverage of threats without having to deploy lots and lots of people following people around and so on, which in some ways would be more intrusive.

Photo of Victoria Atkins Victoria Atkins Conservative, Louth and Horncastle

We talk about the security services and the other agencies as block organisations, but of course the quality and effectiveness of an organisation depend on the people who make up that organisation. Could you give us, as far as you are able, an assessment of the qualities and character of the people who work for the agencies that you have led?

Nigel Inkster: In the United Kingdom, we like to maintain the position that intelligence and security work is a high-status profession. We look for quality people who might otherwise go into areas such as the law, merchant banking and that sort of thing. That is the level that we are pitching for, and that is not always the case around the world. In that regard, the United Kingdom distinguishes itself in the right way, in my view. We have very well educated and well motivated people. In my service, for example, we had people joining us in the wake of 9/11 who had taken very significant salary cuts and left high-paid jobs in the City to come and do this work precisely because they were motivated by and committed for what we regarded as the right reasons.

During my time in SIS, I was responsible inter alia for compliance with all the different oversight mechanisms to which we were subject. I had extremely  long conversations with the various commissioners responsible for overseeing those activities. In all cases, their judgment was that the people we employed were highly motivated, took their responsibilities seriously and understood the powers that they had, the need to act lawfully and the need to use those powers in a wise, measured and proportionate manner. I think we are very fortunate as a country.

Lord Evans: I would agree with that. I think we have employed people who are intellectually able, are motivated by public service and are ethically sensitive. It might be useful to the Committee to invite the Clerk to find comments made by Lord Brown of Eaton-under-Heywood, a former Supreme Court judge and former intelligence commissioner, when the 2015 Counter-Terrorism and Security Bill was being discussed in the House of Lords. He gave a very, very strong endorsement of his experience of the quality and integrity of the members of the intelligence services that he had seen. If you want an independent voice, rather than a voice from inside the agencies, that might be worth finding.

Photo of Victoria Atkins Victoria Atkins Conservative, Louth and Horncastle

In the nightmare scenario that there was a wrong ’un in the agencies, how would they be able to find that person and prevent them from misusing their powers ?

Lord Evans: It is inevitably the case that you cannot ensure that everybody in the service is brilliant and saintly, because it’s human nature. As a result, we maintain a strong, continuing vetting procedure. Your vetting is reviewed on a regular basis and it is built into the way we do our appraisal to raise security-related issues. Also, particularly in the management of access to sensitive information, there are arrangements to ensure independent oversight of what is being done on the systems that the service has in place. In the same way that, if you were running a trading system in a bank or something, you would monitor the activities of the traders to try to identify improper activity, something similar is applied to the systems operating within the intelligence services. We rely on good recruitment and on continuing security vetting, but we also have some wired-in ways of trying to identify misuse of official resources for personal use or whatever.

Photo of Peter Kyle Peter Kyle Labour, Hove

I would like to turn your attention from the efficacy and professionalism of your staff to that of the politicians you have had to deal with over the years. You have had to have relationships with several different Home Secretaries in your time. Have you always been able to get the time and attention you need from each of them at the moment at which you need it?

Lord Evans: I served under four Home Secretaries from both the Labour party and the Conservative party. I saw the Home Secretary without fail once a week, and quite often twice a week. All of them took a great interest in the work that the service was doing and its operations, and were regularly briefed. From that point of view, I think we were given very good airtime. In addition to that, there is the question of the time to look at warrants. They were not presented by the director general but were processed and nominally presented by the Home Secretary’s officials, so on top of that there was a lot of time spent by Home Secretaries on warrants. I can say, without going into great detail, that they did  not all go through with a tick. Occasionally, warrants would come back and they would say, “Actually, the Home Secretary doesn’t want to sign this.”

Photo of Peter Kyle Peter Kyle Labour, Hove

You have answered my second question, which does great service to your profession. Does the same stand for you, Mr Inkster?

Nigel Inkster: Yes. Obviously, our service’s interaction was more with the Foreign Secretary, but our experience is comparable. I cannot think of a single case of a Foreign Secretary who did not take a serious and sustained interest in this area of work. I cannot think of a Foreign Secretary who did not take a serious and sustained interest in the kind of warrants and submissions that they were asked to approve. My experience, like Jonathan’s, is that these did not go through on the nod. There was lot of self-policing in the system, because we knew that a weak case would not stand. There was no point in putting it forward, because its fate would be clear, so one did not do that. The only other thing I would add is that my experience has been that, without fail, the senior politicians involved in this business owned the decisions that they took, stood by them and did not, as they well could have done in many cases, try to fend them off on to somebody else.

Photo of Peter Kyle Peter Kyle Labour, Hove

My final quick question is: is there much difference in the behaviour towards issuing warrants between Home Secretaries, or do you find it a consistent experience?

Lord Evans: Broadly speaking, all the Home Secretaries took a similar view on this. I have never come across a Home Secretary who was pro-terrorism, obviously. I suppose, in practice, what happened early on in the time of a Home Secretary being in post was that you tended to get more questions, which is entirely as you would expect. If a new Home Secretary came in, quite often they would say, “I don’t understand that. Bring me somebody to explain it.” So they are doing their job. Of course, that is an iterative process because if you understand that a Home Secretary has particular concerns about area x, you will put a little bit more effort into explaining it and making the case. You would tailor it to some extent to the particular concerns of any particular Home Secretary, but the overall threshold employed was roughly the same.

I would say one other thing. I do not want to name names for this purpose but I can remember at least on one occasion briefing a new Home Secretary on something we were doing that was really quite intrusive, although it was lawful. I said, “I need to tell you about this.” Their initial reaction was, “That’s fine,” and I said, “No it isn’t. You need to think about this. You cannot just say ‘This is fine.’ You need to be aware that this is potentially quite audacious. May I suggest that you look at this in a little more detail rather than go with something off the top of your head?” We did try to ensure that Ministers really were internalising this. We were not just trying to get it past them without them thinking about it, not least because if something then comes up, you do not want to be in a position where the Home Secretary says, “You never told me this could get me into trouble.”

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

Okay, we have to move on to the Minister now.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

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.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

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 .

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I have just short supplementary question on bulk datasets. There is a great sensitivity about some datasets. People might not mind if their flight details are kept, but they do mind a great deal if, for example, their mental health records are collected. If there was some extra provision in the Bill for sensitive or highly sensitive data, would that cause you any concern, assuming that in any given case you can get over the threshold?

Lord Evans: Our internal processes when we were going down this path did take these issues into consideration. As you say, health records are extremely sensitive, so you would need an extraordinarily high level of justification. If you wanted to externalise that into the process—I have not talked to anybody about this so this is my feeling on it—then as long as you are really talking about very, very intrusive datasets, I would not have thought that having an additional safeguard would be a showstopper.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

So if it was to externalise what was internal practice, which is obviously based on experience, that would not be a showstopper.

Lord Evans: I would not have thought it was a showstopper. You are going to hit definitional issues. It is a bit like journalists and politicians kind of stuff.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

I am afraid that brings us to the end of the time allotted for the Committee to ask questions. On behalf of the Committee, I thank our witnesses for their evidence.

The Chair adjourned the Committee without Question put (Standing Order No.88).

Adjourned till this day at Two o’clock.