New Clause 1 - Report on the Prime Minister’s engagement with the Intelligence and Security Committee

Part of Investigatory Powers (Amendment)Bill [Lords] – in the House of Commons am 6:30 pm ar 25 Mawrth 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of David Davis David Davis Ceidwadwyr, Haltemprice and Howden 6:30, 25 Mawrth 2024

I will not go over it again, but the High Court and the Court of Appeal came to a different view from that of my right hon. Friend, I am afraid, and that is why the legislation was struck down.

Some of the elements of this Bill are not very wise. The Opposition have agreed that the pre-notification of tech companies will act to drive business away from our shores. That is, as I said earlier, the opposite of what the German Government are doing, and we are going to have to modify our approach to deal with some of our allies along the way.

I also have serious concerns about the bulk collection of data, which the Scottish National party has tabled an amendment on. I think it was Stalin who once said that, at a certain point, quantity has a quality all of its own. That is certainly true of information technology and bulk data. It was interesting to listen to the earlier brief debate on so-called “no expectation” and “low expectation of privacy”, by the way. Those are completely different things. They sound similar but they are completely different, as will become clear, I suspect, when the SNP spokesperson speaks to that amendment. Even today, “low expectation of privacy” data can tell a Government with quite primitive software vast amounts about our lives and about what we are doing every minute of every day, but with artificial intelligence that is going to be multiplied many times and become much more powerful than before.

To give colleagues a feel for how this might work, let us look back to the covid period, which in some senses was almost Orwellian. The Government had three different disinformation units of various sorts that looked at everybody’s comments. If someone commented on flaws in the modelling of the virus, questioned where the virus came from or quite properly stated that the vaccine did not stop transmission—it stopped deaths, but it did not stop transmission—this would lead to all their low or zero expectation of privacy documentation and all their online stuff being monitored by the Government. A number of Members of this House were monitored on that basis—in my view, entirely wrongly. That was all within the law as it stood then, so it was not massively important, but it nevertheless demonstrates the mindset of Whitehall when dealing with these things.

Today, however, nine out of 10 of us—if not more—carry a smartphone. That makes it easy to access our shopping habits, our purchase history, our bank records, our automatic number plate recognition records, and on and on and on. Do we really want the agencies of Government to be able to peer into all that data? It belongs to people who are, remember, entirely innocent of any crime. Our entire approach to law and order in this country has been to focus on people against whom there is a reasonable expectation or a reasonable suspicion, not to monitor everybody. It seems to me that this intrusive surveillance is a dangerous route to take and, as I say, I think we might regret it within 10 years, because the power of artificial intelligence will make this bulk data much more informative than we are conscious of today. I worry about it. I did not put an amendment down on it because others have done so, but it is something that we must concern ourselves with in the longer run.

One of my two principal concerns today is how the Bill relates to the expansion of powers around the surveillance of Members of this House. Until 2015, it was widely understood that the Wilson doctrine protected MPs’ communications from interception. This protection was repeated in unequivocal terms by successive Prime Ministers—even Tony Blair, who is not someone with a great reputation for worrying about Members’ civil liberties. Despite clear and unambiguous statements that MPs and peers would not be placed under surveillance, the Investigatory Powers Tribunal held in 2015 that the doctrine had been unilaterally rescinded by the Government.

In an attempt to ease concerns, the Investigatory Powers Act 2016 created a regime—the one we have now—whereby a Secretary of State must first secure the approval of the Prime Minister and a judicial commissioner before authorising the interception of an MP’s communications. Frankly, I have served under nine Prime Ministers as a Member of Parliament, and I cannot say I am happy that all of them would have taken a very responsible approach to exercising this power. This is an almost judicial power that is given to a person whom it is our job to challenge and hold to account every day.

The Bill seeks to expand the list of people who can sign off on the surveillance of MPs way beyond that, from the Prime Minister to effectively five Secretaries of State. There was a long argument in the Lords and in Committee about introducing words such as “unable” or “unavailable.” I think they had in mind that Boris Johnson was sick and laid up for a month or so and perhaps could not act in that capacity. Even by that logic, we do not need five Secretaries of State to be able to deputise, unless we are imagining a mass-casualty event in the Cabinet. Frankly, this seems far more like a precursor to a general loosening of the policy than a serious and sensible protection of the ability to sign this off. I worry about that, and I do not like it at all.

I do not like the idea of the surveillance of MPs except under incredibly strict circumstances. I am not casually asking for MPs to be somehow above the law, not at all. This protection is vital to safeguarding what we do. We are here to hold the Government to account, not the other way round. The relationship between constituents and their elected representatives is sacrosanct. It is the bedrock upon which our representative democracy stands, and constituents expect that, as they should. But it is not just constituents who rely on the sanctity of their communications with Members.

It is truer and more obvious today than at almost any time in my 30-odd years in this House that, in doing our job, we deal with campaigners—think of the sub-postmasters—journalists, whistleblowers, victims of injustice who may be terrified of being identified and, of course, other Members of Parliament, and that is just a few. They all trust us to keep what they tell us absolutely rock solid, private and confidential.

This Bill will do nothing but further undermine people’s trust in bringing serious matters to our attention. The Horizon scandal, Mid Staffs, sweetheart tax deals with large companies, the mistreatment of prisoners by the British Army, involvement in rendition and torture, and dishonest briefings for immoral wars—every single one of them was brought to our attention by a whistleblower who, in many cases, faced criminal prosecution if they were discovered. Are people likely to continue blowing the whistle with a loosening of the Wilson doctrine? I do not think so.

If I had my way, I would amend the Investigatory Powers Act to prevent communications to and from Members of Parliament from being intercepted at all. At the very least, I would change this proposal to require that the Prime Minister secures the approval of a Supreme Court judge before signing off on any warrant permitting the interception of a Member’s communications. That would take the process completely outside the normal approach under which the Investigatory Powers Tribunal and all the machinery around it routinely says yes to requests, day in and day out. Calling for, allowing or permitting the interception of the communications of a Member of this House or the other place ought to be something clearly extraordinary in the life of a Prime Minister. A Supreme Court judge is far more likely also to have the authority required to face down poorly justified demands, which has not always happened in the past. The Executive should not wield the power to order the surveillance of Members of this House at their sole discretion. The very senior judiciary should provide a vital check on that power.

Dan Jarvis highlighted another concern, which is torture. Successive British Governments—this is evidenced, so it is not an assertion—have acquiesced in the abuse of political detainees by foreign regimes. This must stop. It has been asserted that Jagtar Singh Johal was recently detained and tortured by Indian authorities as a result of British intelligence, which, if true, is harrowing, but the story is depressingly similar to stories that we know are true. During the so-called war on terror, countless prisoners were tortured by foreign Governments after the British Government provided them with information. The 2018 ISC report on detainee mistreatment and rendition found:

“The Agencies also suggested, planned or agreed to rendition operations proposed by others in 28 cases. We have seen a further 22 cases where SIS or MI5 provided intelligence to enable a rendition operation to take place;
and 23 cases where they failed to take action to prevent a rendition”.

I suspect this includes the Binyam Mohamed case, the Rangzieb Ahmed case and the Abdel Hakim Belhaj case, for which the Prime Minister had to apologise. We should be ashamed of all these things. I am afraid that, each year, we are seeing more cases in which the UK seeks to share intelligence despite a real risk of torture.

There is no doubt that our intelligence agencies do a difficult and sometimes dangerous job, but getting mixed up in torture does nothing to keep us safe. It undermines the civilised values that we stand for, and we are in a battle of values in the so-called war on terror. It is incredibly important that we maintain the high values that we expect.

My new clause 3 would prevent the repeat of such travesties, as no public authority would be able to hand over information to an overseas authority where, as a result, there is a possibility of

“torture or cruel, inhuman or degrading treatment or punishment”.

The Conservative party has a proud legacy of standing up against torture, going back to Margaret Thatcher. Under her, we passed the Criminal Justice Act 1988, which made torture, anywhere in the world, an offence under the law.

The Minister has a difficult job; there are no two ways about it. The task faced by the Home Office, and indeed the agencies, in dealing with the threats to this country is incredibly difficult but, from time to time, we have historically slipped from the standards we view as essential to our national character—a proper understanding and belief in the rule of law, and abiding by that rule of law almost irrespective of the circumstances in which we find ourselves. The first test—the first criterion—when considering a Bill such as this should be, “Do we always obey the rule of law? Does the Bill encourage Governments always to obey the rule of law, whether they are dealing with suspects abroad or with subjects at home?”