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 the Member for South East Cambridgeshire (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, the hon. and learned Member for Holborn and St Pancras (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.
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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 the hon. and learned Member for Edinburgh South West (Joanna Cherry) said, supermarkets, search engines and mapping devices all track our shopping choices, our interests and our movements, and use 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.