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Examination of Witnesses

Investigatory Powers Bill – in a Public Bill Committee at 4:00 pm on 24th March 2016.

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Lord Reid and Charles Clarke gave evidence.

Photo of Charles Walker Charles Walker Chair, Procedure Committee 4:30 pm, 24th March 2016

Thank you, both distinguished former Home Secretaries. I will not ask you to introduce yourselves because I think that would be a little impertinent of the Chair. Let us go straight to Keir Starmer.

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

Thank you both for coming to give evidence to us this afternoon. We are really appreciative. Can I dive in with the question that I think the whole Committee is intrigued by or interested in? You have experience of carrying out authorisations and signing warrants. We know there are a number every day. Can you give us an example of the exercise you both carried out when you were looking at warrants so that everyone in the Committee can understand what the role of the Secretary of State was before, as is now proposed, it goes off to a judge or commissioner?

Charles Clarke: The submission is made by the officials and the services, and says there is a suspected threat in a certain area and that they recommend authorising a power to surveille a group of individuals. The judgment that the Secretary of State then has to make is whether he or she does or does not accept that there is a case for surveilling the individual. According to the time available—some of the issues do not give you a great deal of time to decide what is happening because things can be moving very quickly in both serious and organised crime and counter-terrorism—you might decide to seek more information about the particular circumstances and why the judgment is being made. I think that you would always—I don’t know what John’s experience was—have at least a brief discussion with the officials concerned about the particulars of the case. It would  not necessarily be extensive and the longer you are Home Secretary, the more experience you gain of the circumstances in which these sort of things are requested.

I am sure all Home Secretaries take the decision very seriously and seek to come to a judgment about it. I do not know whether that sounds familiar to you, John, but that is certainly how I felt I was trying to deal with it.

Lord Reid: That is roughly the process. Obviously each individual case is somewhat different. Some are hugely different from others. Each individual case may have a different timescale. Without going into individual cases, you can imagine that, certainly on occasions, I had to deal with—I am sure Charles did, too—warrants in connection with an ongoing hostage situation, when there was an imminent threat to life. There is obviously a degree of urgency about that, and that constrains the time for consideration and, no doubt, the time for judicial review.

In Northern Ireland, lives were often plainly at risk. In those cases, you have a time constraint. In other cases, you have a pretty bulky file, sometimes on a renewal. In other cases, you would have a pretty bulky file, sometimes on a renewal. As it happens, we had consecutive periods so, on occasions, I would have got an application to renew a warrant that perhaps had initially been okayed by Charles. Nevertheless, with duty and diligence, you would spend a bit of time going through it yourself—sometimes going through the papers that he went through. In other cases, there might be less information to be examined because it might be—for instance, in the case of an ongoing and imminent terrorist plot—that a telephone number, a name or some association had been picked up tangentially in relation to someone else that you had been looking at for some time.

The only other thing that I would say is that I suspect that, during the time that Charles and I were Home Secretary or, indeed, in any other position authorised to issue intercepts, because of the exponential rise of communication through cyber and the internet, the number of applications would be getting greater and greater.

Charles Clarke: Can I just add one point, Mr Starmer? There is an important conceptual point here, which is that modern detection of organisations which are criminal in intent—serious and organised crime, and terrorism—is basically about building up a pattern of what networks of relationships exist between different people.

You collect information, as John just implied, about particular nodes of the situation. Then the question is what forms of communication they have with others and who they are communicating with in order to try to better understand what the actual networks are and who is talking to who and, in certain circumstances, what they are actually intending to do. That is just the background that you should have in your mind when thinking about what kind of surveillance requirements are necessary to look at that.

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

I know there is no such thing as a typical case because they are all shapes and sizes but, in the main, would you have expected a signed statement from somebody setting out the case for necessity and  proportionality—why it was necessary—and drawing your attention to the relevant material?

Lord Reid: Yes. That would be the top introduction, but there may well be further papers behind it. In some cases, there may be papers behind it in some depth.

Charles Clarke: If the question is whether there would normally—I am trying to think whether there is any exception to this—be a recommendation by an official based on the data that existed, the answer is yes. I am trying to think whether there are any exceptions to that. I cannot think of any off hand.

Photo of Peter Kyle Peter Kyle Labour, Hove

One of the innovations of the Bill is the double lock. When you were Home Secretaries, most warrants would have been signed just by the Home Secretary. Will the knowledge of having judicial oversight and a second authorisation before the warrant comes in change the behaviour of the Home Secretary when approaching the decision?

Charles Clarke: I tend to doubt it. Speaking for myself and, I am sure, for John—actually, for all Home Secretaries I have ever discussed this with—we have all been exceptionally aware of the severity and seriousness of what we were looking at. I do not think that the idea that there was going to be a judicial review of what we were doing would have changed our behaviour significantly. There is quite a serious, in-principle issue about the role of the judge as opposed to the role of the Executive.

I saw you taking evidence from Lord Judge just now. I bumped into him as I was coming in. The question of the relationship between the judiciary and the Executive is a key point. I gave evidence on it to the House of Lords Constitution Committee in 2007 because I think it has all been changed by the Human Rights Act 1998. I think there has been insufficient consideration of the changing nature of the relations. In response to your particular point, Mr Kyle, I do not believe that there would have been a significant change in behaviour.

Lord Reid: I do not think there will be a change in behaviour from the point of view of the person who is ultimately accountable to Parliament for the decisions, which is the elected Member and appointed Minister. Probably even before RIPA, which I think Charles took through the House of Commons, there was an awareness that there were degrees of oversight and you were working within certain constraints and certainly with oversight.

I confess that where I would worry—you would perhaps say, “Well, he would, wouldn’t he? He was the Home Secretary.”—is in case the judicial oversight became a co-decision. I think that is a recipe, in some cases, for obstacles to the efficient operation of aspects that I mentioned earlier, for instance in a hostage situation. I know that allowances are being made for that.

I guess that the additional oversight—judicial oversight—that is in the Bill is a result of a number of factors. One is the concern—I do not know whether it is public concern; I do not think it is, but it is certainly published concern—over the Snowden revelations, the general distrust of politicians and the fact that there was a Liberal-Conservative coalition. All of this is compromise, is it not?

I have no in-principle objections to it, provided that the first decision is made by the person accountable for it, through Parliament, to the public and the role of judicial oversight is the judicial element of it.

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

On 4 November last year, when the Home Secretary introduced the draft Investigatory Powers Bill to the House of Commons, she informed us:

“the acquisition of bulk communications data, both relating to the UK and overseas…is not a new power. It will replace the power under Section 94 of the Telecommunications Act 1984”.—[Official Report, 4 November 2015; Vol. 601, c. 971.]

May I start with you, Mr Clarke? When you were Home Secretary, how many times do you recall authorising the use of

“the power under Section 94 of the Telecommunications Act 1984” to collect the telephone records of everybody in the UK into a single national database?

Charles Clarke: I do not recall the answer to your question at all, I am afraid; I have not prepared for this meeting, or gone back to my files, so I cannot answer the question. I think what the Home Secretary will have been trying to communicate is that the purpose of this legislation is to update legislation in the light of massive technological change, even since 1999, when I took the RIPA Bill through Parliament. As you will recall, that was to make what was being done compliant with the Human Rights Act, which required us to have a basis on which all of this was understood. Previously, this had all been done without any basis, and I was very proud to take that legislation through.

I said at the time—if you go back to the records of those hearings—that it would be necessary to update that Bill as technology moved forward, and I think that is what the Home Secretary meant in what she said. However, I apologise that I cannot give you the precise answer that you are looking for.

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

Perhaps you can help me with this question. When Parliament passed the Telecommunications Act 1984, there was no such thing as itemised phone bills. Do you remember back that far?

Charles Clarke: I was hardly born then. [Laughter.]

Lord Reid: That is before even we were in Parliament.

Charles Clarke: Sorry. Joking aside, I understand your point completely—

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

On the hypothesis that that is correct—that there was no such thing as itemised telephone bills in 1984—then the use of itemised telephone bills to compile a national phone call database could not have been foreseen when that legislation was passed by Parliament, could it?

Lord Reid: I think these are interesting questions, but they miss the point of historical change since 1984; that is the important thing. To put it at its simplest, the principles behind interception or access have always been the same, whether it was in the days when you sent a letter to somebody, or the days when you made a telephone call to somebody. The principles, put very crudely, were that if you wanted to know whose name was on the envelope, then you had a level of authority that was necessary, and oversight. If you wanted to read the letter, you had a higher level of authority that was required, normally from a Minister. Similarly, with telephone calls, if you wanted to know who was phoning whom, then you needed a level of authority that was not necessarily the Home Secretary, because after 1984 there was such information available. If, as a result of  that, you wished to go into the contents of the telephone conversation, like the contents of the letter, you required an even higher level of authority by warrant.

What has changed is that it has gone from people sending pigeons, writing letters and telephoning each other, to global communication, as you will be well aware. Instead of a phone call from Cambridge to London that can be intercepted, it goes around the world in packages. Indeed, as you probably know, that is why it was produced: the internet has its origins in the necessity of protecting the command and control structure for the launch of American nuclear weapons by the American President. It makes it much more difficult to intercept that.

To put it in grossly simple terms again, somebody used to say, “We all like rabbit pie but first you have to catch the rabbit.” We all want to get the needle in the haystack, but first you have to find the haystack. The problem we are all faced with now is that the haystack is global. It is global communication, which is why we get this tension between so-called bulk collection and targeted examination.

That is a long answer to your question, but I hope it goes to some of the central questions that your Committee will be asking about that relationship. Normally, a Secretary of State would authorise a targeted interception, but the explanation of why you are being asked to authorise that may relate to something much wider, as I hinted at earlier, because you have discovered the need to target this interception because of a bigger node and a bigger network.

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

I was not asking about targeted interception, I was asking about the current Home Secretary’s specific avowal of that fact that for many years section 94 of the Telecommunications Act 1984 has been used to collect the phone records of everyone in Britain into a single national database. I am simply interested to know whether either of you gentlemen, as former Home Secretaries, could tell us whether you had authorised that.

Charles Clarke: No, I cannot, for the reasons I have stated.

Lord Reid: You would have to ask the Secretary of State that.

Charles Clarke: I do think that the related point is future-proofing. In an area where technological change is taking place so rapidly—where you have a state of affairs on the balance between security on the one hand and liberty on the other, and where we need to keep the capacity to surveille threats to society—how do we future-proof that? That was the issue I faced with RIPA in 1999-2000, and I think it is the issue that this Committee faces in thinking about this particular piece of legislation too.

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

It is good to have two of my favourite former Home Secretaries here.

Charles Clarke: Name names. [Laughter.]

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

I have many favourites.

The only question I really want to ask is whether you ever felt that the test of necessity and proportionality was insufficient to allow you to make a judgment of the  kind you describe? You have said that you could call for more information and that you could qualify what you had on that basis, but in your judgement, did you ever, at any point, not feel confident to make a judgment on the basis of that prevailing test of necessity and proportionality?

Charles Clarke: For myself, I can recall only one case where I felt that. In that case, I decided not to authorise the warrant that I had been requested to authorise, for exactly the reason you suggested. There was an issue in my mind about whether the proportionality issues had been properly weighed up. I think that the proportionality issues were a constant theme of any of the warrants that were sent. You had to try to make a judgment.

I cannot recall whether there were specific guidelines on this, but when I first became Home Secretary I certainly had a couple of briefing meetings about the issues in general—not about particular warrants—to try to go through some of the principles that applied. I am sure other colleagues did much the same. I do not recall a written-down document that tried to explain the proportionality judgment in general, because obviously in reality you are always making the proportionality judgment in particular cases. My approach was that if I did not feel it was satisfactory, I would not agree the warrant.

Lord Reid: I take it that you are asking, “Were there occasions on which you refused a warrant because you didn’t think it was either proportionate, sufficient or necessary?”

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

Yes. Obviously you know, as you are very familiar with it, that that is the kind of baseline requirement. I presume that the case that was made to you was mindful of that requirement and that, for the most part, you felt it met the requirement. I just wanted confirmation of that.

Lord Reid: To give you a straight answer, yes. When I was Home Secretary, I refused a warrant. On other occasions, I refused to renew a warrant. I cannot remember specific cases in Northern Ireland, but I did it there as well. In the first instance, when a warrant is put to you, you are exercising a degree of judgment. And very often you are exercising a judgment based on other people’s judgment, and their judgment is often based on fragmentary evidence. That is the problem with all intelligence, as we know to our cost in some cases. You exercise a judgment, and that judgment is hopefully exercised diligently on the criteria: “Is this proportionate? Is it necessary? Is it reasonable? What is being asked here?” There were occasions on which the answer was no. Before you said no, the normal process would be to call in the various officials—the people who put the submission to you—if necessary, and to go through it orally and ask them questions. The answer to your question of whether I ever refused a warrant is yes.

Photo of Byron Davies Byron Davies Conservative, Gower

You have answered the main question I was going to ask, but this is carrying on from that. Times have moved on since your days in the Home Office in terms of technology, with smartphones, et cetera. If you were sat in the Home Office now, would you be looking at introducing this Bill?

Lord Reid: I don’t think it is entirely up to the Home Secretary to introduce it. There are two countervailing pressures. One is the development of cyber, which is something that, having stepped down from the Cabinet, I have voluntarily spent a lot of time working on. By the time you get this Bill through, in whatever form, we will no doubt be faced with artificial intelligence and a whole new era of communication. Yes, it would be necessary to take into account the changes, as I was saying to Ms Cherry earlier, in the world of cyber, and particularly the global nature of communications.

Secondly, there are undoubted pressures from the other end, not just the wish from the intelligence services and the policing side. I don’t think their motives and objectives have changed; what has changed is the world around them. Therefore, to meet the same objectives, they have to employ different methods on the old principles. However, at the same time, I am well aware that there has been widespread—“discussion” is a very light word—controversy about access to people’s information. Sometimes it is a paradox, because people are willing to supply all sorts of information to all sorts of private companies. That information is not only being put in a databank but is being mined, matched, sold and used for commercial reasons. Nevertheless, whatever the paradox, the concern is there, and I think the Bill tries to meet the needs of addressing technological change on the side of security at the same time as giving the reassurances necessary because of the public’s concerns about the new world in which we live and about intervention into it. That is against a background where, as the Committee will know, one of the constant characteristics of the world of cyber and communications is constant entrepreneurial innovation by black hats and white hats. It is literally changing every day. Therefore, the equivalent of today’s microdot, where we used to put secret messages, can be a webpage—an apparently innocent webpage that can be sending all sorts of instructions, propaganda or whatever. There are very bright people in both the black hats and the white hats who are constantly inventing things, vis-à-vis each other.

Photo of Charles Walker Charles Walker Chair, Procedure Committee

We really are pressed for time, gentleman. Can we have shorter answers so I can get as many colleagues in as possible?

Charles Clarke: My short answer is yes, I would have been in favour of introducing such a Bill. I think the question of updating with future-proofing is very important. On the timing, I cannot comment on whether the Home Secretary was right to introduce it now as opposed to in five years, or five years before, or whatever. The only factor that I would add to John’s remarks is that the capacity of the organisations that we are trying to contest is a very important issue and they are very wealthy, very effective, very scientific and very powerful, as John said. An assessment will be being made, which I am not privy to now, of how effective those organisations are now, which undoubtedly would have informed the Home Secretary.

Photo of Victoria Atkins Victoria Atkins Conservative, Louth and Horncastle

I have one question for Mr Clarke. You were the Home Secretary during the 7/7 bombings. How important was your experience of warrantry and your relationship with the security services in the hours and days that followed that terrible event?

Charles Clarke: Critically important. I believe that  one of our strengths in the UK is that we have good relations between the different security services, the police and the political establishment in these areas. Indeed, with 7/7 itself, there had been substantial rehearsals of the various co-operations that needed to take place. I think that co-operation between the various agencies charged with the security of the country is exceptionally important, and 7/7 reinforced that for me very much.

Photo of Victoria Atkins Victoria Atkins Conservative, Louth and Horncastle

When you were standing up in the House of Commons at the Dispatch Box explaining what the security services and the police were doing, how important was your personal oversight of that, as opposed to just a judge doing it by themselves?

Charles Clarke: The implication of your point I could not agree with more. My personal experience was very important. It did lead me, personally, directly to have relations with the individuals in the security services who were involved with these things, and I think that helped my whole job as Home Secretary.

Photo of Matt Warman Matt Warman Conservative, Boston and Skegness

You talked about updating the legislation and the importance of that. Do you see an internet connection record or something equivalent to it as a key part of updating this legislation for the world we live in now?

Charles Clarke: I do personally, yes.

Lord Reid: I do as well. Not to test the Committee, but two years after 7/7, on 6 August 2006, there was a plot to bring down seven airliners. There would have been 2,500 victims, and intercept was absolutely essential in protecting those lives—absolutely essential—with both the internet and telephone communications.

Photo of Suella Fernandes Suella Fernandes Conservative, Fareham

It has been raised before, but some witnesses have said that warrantry should be solely within the Executive function—

Lord Reid: What, sorry?

Photo of Suella Fernandes Suella Fernandes Conservative, Fareham

Warrantry should be retained by the Executive. Other witnesses have said that it should be a judicial function. The double lock is a middle way. Where do you both sit on that spectrum, ideally?

Charles Clarke: Personally, I am in favour of the Executive responsibility. I would prefer to have that. I think the more you draw the judiciary directly into the operation of the law, as in continental systems, the more you threaten the ability of the judiciary to play its characteristic role. I understand why proposals are being made to have a double system, and I am not against it, but it is against my instincts, actually. It is a path that has been ill thought through. There is a whole section of lobbies in this country who believe, essentially, that the lawyers are better people, in whom you can have more confidence than in the politicians. I reject that assessment.

Lord Reid: I agree entirely with Charles on that. I think that there are a couple of other reasons as well. First, this judgment ultimately is not just the strict codification of a law, although it involves that; it is about political judgment—I therefore think that there is a second reason. The third reason is quite simple. If a wrong decision is made and 2,500 lives are lost, for instance, it will not be the judges who are held accountable—I do not just mean by Parliament, but by the family, the public, the community—it will be the Minister. Therefore, for those three reasons, I personally am in favour of this being the decision of the Executive. For the reasons that I explained, I am willing to accept that the Home Secretary has had to bow to other pressures and to put in judicial oversight, but only as long as that is about oversight and judicial process, and not about decision making. If it is about decision making, I think it is a recipe for ineffective operational capability.

Photo of Charles Walker Charles Walker Chair, Procedure Committee

I thank our two witnesses for tailoring their responses in a way that allowed all colleagues to get in, including Back-Bench colleagues. Absolutely fascinating. On behalf of the Committee, I wish you a very happy Easter. Thank you so much for being so generous with your time.

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

Adjourned till Tuesday 12 April at twenty-five minutes past Nine o’clock.

Written evidence to be reported to the House

IPB 01 Muslim Council of Britain

IPB 02 Willie Mckenna

IPB 03 David Sawford

IPB 04 John Bingham

IPB 05 Jaron Shulver

IPB 06 Dr Paul Bernal, Lecturer in Information Technology, Intellectual Property and Media Law at the UEA Law School

IPB 07 Guardian News & Media

IPB 08 Brass Horn Communications

IPB 09 Brian Scallan

IPB 10 David Mytton

IPB 11 Martin Kleppmann

IPB 12 Keith Alexander Mallen

IPB 13 Adrian Kennard

IPB 14 Information Commissioner

IPB 15 Tirath Bansal, Director, Myorb Limited

IPB 16 Annie Machon

IPB 17 Maritime and Coastguard Agency

IPB 18 James Le Cuirot

IPB 19 Scottish PEN

IPB 20 IT-Political Association of Denmark

IPB 21 Apple, Facebook, Google, Microsoft, Twitter and Yahoo

IPB 22 Chief Inspector Keith Conradi, Air Accidents Investigation Branch, Chief Inspector Steve Clinch, Marine Accident Investigation Branch, and Chief Inspector Simon French, Rail Accident Investigation Branch

IPB 23 Open Intelligence

IPB 24 Stuart Johnson, Director, Logic Ethos Ltd.

IPB 25 Big Brother Watch

IPB 26 News Media Association

IPB 27 techUK

IPB 28 Criminal Cases Review Commission

IPB 29 Leonard J. Crabs, on behalf of the Megan Kyanka College Fund

IPB 30 Ray Corrigan

IPB 31 Internet Service Providers Association

IPB 32 Bingham Centre for the Rule of Law

IPB 33 Digital-Trust, CIC

IPB 34 Equality and Human Rights Commission

IPB 35 Christopher Lloyd

IPB 36 Center for Democracy & Technology

IPB 37 Kevin Cahill

IPB 38 Bar Council

IPB 39 Justice