Harriet Harman

Member of Parliament for Camberwell and Peckham. Mother of the House of Commons.

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Investigatory Powers Bill – Amendments 131-132 & 133-136 – Thematic Warrants


We want to be able to walk the streets safely and sleep safely in our beds, but we don’t want the executive to be tempted to abuse their power. I spoke in the House of Commons today in support of a number of amendments put forward by myself and members of the Joint Committee of Human Rights, which I Chair. The committee considered evidence from experts before putting forward these amendments.  You can read my speech below or watch it here.

More about the Committee’s work on this Bill here

House of Commons Library briefing on the Bill here

Amendments to the Bill including those tabled by JCHR Members here

Track progress of the Bill here

Harriet Harman (Camberwell & Peckham) (Lab)

The Joint Committee on Human Rights has four issues relating to this group of amendments that it would like to raise in the House and press the ​Minister on. The first relates to thematic warrants, and I want to follow up on the points made by the shadow Home Secretary and the shadow Immigration Minister on my own Front Bench, as well as those made by the hon. Member for Stevenage (Stephen McPartland) and the hon. and learned Member for Edinburgh South West (Joanna Cherry).

Our starting point is that we must remember that thematic warrants give enormous powers. Those who are authorised have the wide-ranging powers to read someone’s emails, which could include a report sent by a hospital about a medical condition, to listen to their phone calls, to see to whom they have been making calls, to hack their mobile phone and turn it into a listening device, and to look at all their information, including from their bank. The powers are very wide ranging. Such warrants are supposed to be targeted, so I urge the Minister to recognise the feeling across the House that powers are needed to make us safe, but that the Government have not yet sufficiently delineated and narrowed the circumstances in which they should be used. I urge the Government to talk to the Opposition Front-Bench team, their Back Benchers and the SNP to make the targeted powers more targeted.

David Winnick (Walsall North) (Lab)

What my right hon. and learned Friend says sums up the position. The Opposition Front-Bench team has managed to negotiate concessions from the Government. I accept their good intentions—the Opposition Front Bench—but the fact is that the powers that the Bill will give the security authorities are unacceptable despite all the concessions, which is a good reason for voting against Third Reading.

Ms Harman

Let us see whether the Minister and the Government will recognise that we are all trying to get the same thing here. We are trying not only to keep the public safe, but to protect privacy. However, we do that—my hon. Friend will recognise this—in the knowledge that the security services do get tempted to overreach their powers. As night follows day, that is what happens. There are so many examples, after which people think, “How on earth could that ever happen?” It happens because when the security services have powers they get tempted to overreach them. That is why safeguards and narrow definitions are so important. For example, I was subject to security service surveillance, not because I was subversive but because I was fighting for human rights, women’s rights and workers’ rights. The point is that if they can do it, they will unless there is proper delineation, so I add my voice to those who argue for a narrower definition of thematic powers.

I also highlight the concerns of the Joint Committee on Human Rights to those who query the point about major modifications. The Government have gone such a long way to ensure that warrants are properly issued, so why are they driving a coach and horses through the proposal by saying, “After the warrant has been issued, if you feel like it, you can have a major modification”? Trust me, such modifications will not narrow the scope of warrants, they will only widen them. The Government have moved to an extent and have said that major modifications will be notified to the judicial commissioners, but it is not good enough just to tell them; there needs to be a proper approval process. The Government should look again at the proposal.​

As for legal professional privilege and the constitutional issues that we should bear in mind when thinking about what are described as privileges, we must be extremely careful with such areas. Lawyers are able to hold the Government to account and that is called the rule of law. We do not want to give the Executive the ability to interfere unjustifiably with the rule of the law by undermining people in the legal exercise of their rights. I agree with the Opposition Front Bench and others who have said that the Government should go back to the Bar Council and the Law Society to ensure that legal professional privilege is properly sorted out.

Turning to my main point, I am sorry that the hon. Member for Gainsborough (Sir Edward Leigh) is not currently in the Chamber because I largely agree with him, but the Joint Committee on Human Rights has a better way of dealing with the matter. What we need to remember, as MPs, is that this is not just about our constituents being able to come to talk to us confidentially, although we should absolutely defend that. Let me just give one example on that. I had MI6 in my constituency and the cleaners there were about to be privatised, and then sacked or made redundant. They lived in my constituency but they had signed the Official Secrets Act and been told that they were to talk to nobody and were not allowed to be in a union. They came to me very upset, with one of them crying. They said, “We don’t know whether we can speak to you.” I said, “You can speak to me.” They then said, “We think that telling you what we are going to tell you is against the law.” I said, “It doesn’t matter what you are going to tell me. Your legal right, as my constituents, to tell me something that I need to know trumps everything.” They then said that they were going to be made redundant, and so I went along to see someone—I believe it was the director general of MI6—handily taking with me the then deputy general secretary of the Transport and General Workers Union, my hon. Friend the Member for Birmingham, Erdington (Jack Dromey). We got them all redundancy payments and that was sorted out, but I do not want to digress.

I think that the right of individuals to speak to their MP is important, but we face an even bigger constitutional issue, which relates to the fact that we are here not just to listen to what our constituents say, but to hold the Government to account. They are the Executive, and so the idea that the Executive has the power to hack into the emails and listen to the phones of those who are supposed to be holding them to account—to do all of this—offers a big prospect of the Executive abusing their power and undermining the legislature’s ability to hold them to account. The person in pole position to defend the importance of the legislature holding the Government to account is not the Prime Minister, who is the pinnacle of the Executive. We are here to hold the Prime Minister to account.

I appreciate that the Minister has said, “Make the Prime Minister consent to all our emails being hacked, all our phones being listened to and everything else”, but that gives me no reassurance at all, because the Prime Minister is the wrong person for this. We have gone higher up the tree, but we have gone up the wrong tree, because the person who is there to protect us in doing our job of holding the Government to account, including the Prime Minister, is the Speaker. That was recognised in relation to the situation of the right hon. Member for Ashford (Damian Green) when there was ​the question of the warrant being issued, so this is not unprecedented—the recognition that it is the Speaker who has to protect our rights to hold the Executive to account, which is what we are actually here for.

My Committee discussed this issue at great length. We do not suggest that we make the Speaker an arm of the state and make him start looking at warrants for all of us, but we go further than the hon. Member for Gainsborough, who says that the Speaker should be notified. We say that the Speaker should be notified sufficiently well in advance that if he or she feels that it is right to do so, they can go to be heard by the judicial commissioner to make their views known, and so they can have an intervention in the process. I am certain that if it was known that the Speaker would be notified and have the opportunity to speak about it to the judicial commissioner, that would make the security services much more cautious before they actually went for warrants to intercept all the communications that we are having.

John Hayes (South Holland and the Deepings) (Con)

I could make two points about what the right hon. and learned Lady said. She says that the Speaker should be involved but not implicated, but I do not see how the Speaker would not be implicated and become an “arm of the state”—that is not a phrase I would have used, but she used it. The Speaker would by necessity become implicated because he would have to know the grounds on which the Prime Minister or others were acting. I do not really understand how she can claim that the Speaker can be involved but not implicated.

Ms Harman

It is true that we are sending part of the process to the Speaker, but we are not giving them the power to authorise. It would be wrong to make the Speaker be part of the authorising process—someone who applies for the warrant, or someone who, like the judicial commissioner, has to authorise the warrant. What we are talking about is notifying the Speaker, but in sufficient time so that if they notice that it is becoming very widespread, they have the opportunity to go before the judicial commissioner and say, “Look, this is going on too widely.”

Mr Hayes

Let me get this right. The right hon. and learned Lady is saying the Speaker would know when and who, but not what or why, because to know what or why, the Speaker would have to become implicated in the way I described.

Ms Harman

No, I think the Speaker would have to know the basis of the application if they wanted to; otherwise, how could they go before the judicial commissioner and say it was unacceptable? If people say, “Goodness me! That would be telling the Speaker information that would be useful in the hands of Daesh or al-Shabaab,” we would be in trouble anyway if the Speaker were the wrong sort of person to have it. I take a slightly different approach from the hon. Member for Gainsborough. He postulated the issue as politics, which is the Government and the Prime Minister, versus non-politics, which is the Speaker. It is not politics versus non-politics; it is the legislature versus the Executive. That is how we should think about it.

George Howarth (Knowsley) (Lab)

Will my right hon. and learned Friend give way?

Ms Harman

I will, but I have a feeling that, sadly, I will disagree with my right hon. Friend, because I heard his intervention earlier and think that he too is barking up the wrong tree. To find myself barking up the same tree as the hon. Member for Gainsborough is a very sorry state of affairs, but I have the hon. Member for Stevenage (Stephen McPartland) on my side.

Mr Howarth

It is typical of my right hon. and learned Friend to get her defence in before hearing the attack. She has been a Law Officer, and when she was Solicitor General I had every confidence in her to be able to sort out the legal advice she gave as Solicitor General from whatever political position she might have taken. Why would she doubt that a Prime Minister could do the same?

Ms Harman

Because the Prime Minister is the Executive, and we need the separation of powers and the balance of powers. I disagreed with the hon. Member for Gainsborough when he was talking about what a great guy the Prime Minister is, so it is not a problem with him, but it might be with the next one. I am on my fifth Prime Minister now and they all have something in common: they regard being held to account as a bit of a nuisance. They do not welcome scrutiny—it is just the nature of the beast. We have to take that into account and accept the fact that, for the rule of law, we have to protect lawyers; for freedom of speech and expression, we have to protect journalism; and for holding the Executive to account, we must protect our rights in this House.

The Solicitor General

I am grateful to one of my predecessors for allowing me to intervene. What if, in a hearing, the Speaker agreed with the application and said, “Yes, go ahead—apply for the warrant. We don’t have any objection to it.”? How would a Member of Parliament hold the Speaker to account for a decision that affected them?

Ms Harman

The point is that the system has accountability for the Home Secretary for issuing the warrant through the judicial commissioner. We are talking about additional protection by way of the Speaker. The Speaker would not be supporting an application; the Speaker would simply be notified, and if they had no objection, it would go through and they would have nothing to do with it—but the Speaker would have knowledge. That is true: the Speaker would have knowledge of it.

In a difficult situation, how do we make sure that we do not put all our rights as a legislature into the hands of the Executive? I appreciate that the Government have tried to work out ways to strengthen the safeguards, but the issue is not just the strength of the safeguards; it is the appropriateness of them. The Prime Minister is not an appropriate safeguard to protect the rights of us in this House to hold him to account. I simply ask the Government to look again.

I congratulate the Government, the Labour and SNP Front Benchers and Back Benchers for working constructively on this. Ultimately, we all want the same thing: we want to be able to walk the streets safely and sleep safely in our beds, but not have the Executive tempted to abuse their power.

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