Investigatory Powers Bill
Lord Keen of Elie ExcerptsWednesday 19th October 2016
(7 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
Lord Keen of Elie
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, Amendments 180, 181, 197, 198, 205, 206, 231 and 232 relate to judicial commissioner approval of major modifications to warrants issued under Parts 6 and 7 of the Bill. They seek to provide additional clarity regarding the matters the commissioner must review when deciding whether to approve such a modification.
The Bill already provides for major modifications to such warrants. In the context of bulk interception, bulk acquisition and bulk personal dataset warrants, a major modification may be used to add or vary one of the operational purposes for which data may be examined under the warrant. As regards bulk equipment interference warrants, a major modification can additionally add to or vary any description of conduct in the warrant.
The Bill requires full double-lock authorisation from a Secretary of State and a judicial commissioner for any major modification to a bulk warrant. These amendments will not change that. Instead, they provide greater clarity about the matters that a commissioner must consider when determining whether to approve a modification to a bulk warrant.
The amendments specify that, for major modifications to add or vary an “operational purpose”, a judicial commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary, applying the same principles as would be applied by a court on an application for judicial review and ensuring that the commissioner complies with the duties in relation to privacy set out in Clause 2, the so-called privacy clause.
In the context of bulk equipment interference, if a major modification proposes to add or vary a description of conduct, the judicial commissioner must also review the Secretary of State’s conclusions as to whether the conduct authorised by the modification is proportionate to what is sought to be achieved by it. The amendments are intended to ensure clarity and consistency across the Bill, and as such are to be welcomed.
The sharing of data and intelligence with our overseas partners is critical to the work of our security and intelligence agencies. Without working together with our allies, those agencies could not do their vital work of keeping us safe. Amendments 184, 185, 201, 202, 209 and 210 simply clarify the consideration that must be given by the Secretary of State before authorising the disclosure to overseas authorities of data acquired under the bulk powers in the Bill.
The Bill already places a duty on the Secretary of State to consider whether corresponding safeguards will be applied to the data that are to be shared with the overseas authority in relation to their retention and disclosure. These amendments make explicit that the Secretary of State must be satisfied that the overseas authority has in place safeguards, to the extent appropriate, that correspond to those in the Bill not only in respect of the retention and disclosure of the data shared in bulk but in relation to their selection for examination. This group of amendments therefore makes absolutely clear that proper consideration will be given to the examination safeguards that are applied whenever bulk data are shared with another country. I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, I thank the Minister for moving these amendments, all of which we are happy to support and some of which respond to concerns we raised in Committee.
It may assist the House if I outline at this stage the purpose of Amendment 185A, in the names of my noble friend Lord Rosser and myself, which is about safeguards for disclosing overseas-related material for our foreign allies and agencies. That is material, possibly including information sent overseas by UK residents, obtained by our security and intelligence services under bulk interception warrants. It is an amendment which we hope the Government will feel able to accept.
In Clause 142, before any information obtained under a bulk interception warrant is disclosed overseas, the Secretary of State must ensure that arrangements and safeguards are in place regarding the retention and disclosure of such material, as the Minister has outlined. These requirements correspond to Clause 141 safeguards for domestic arrangements: that is, requiring that the number of people to whom the bulk-intercepted material is disclosed, the extent of disclosure and the number of copies made is limited to the minimum necessary. These safeguards also require the destruction of such material where there are no longer grounds for retaining it.
However, unlike Clause 141 for domestic arrangements, Clause 142 for overseas disclosure provides a wide discretion for the Secretary of State, whereby she or he must ensure equivalent safeguards only,
“to such extent (if any) as the Secretary of State considers appropriate”.
It could, therefore, be possible for the Secretary of State to decide that no safeguards are required in a particular case.
We recognise absolutely that the UK will need to share intelligence with overseas agencies and our amendment does not undermine the ability of UK agencies to do that. We also accept that overseas disclosure may be of a different nature, with particular political, diplomatic or security implications, all of which the Secretary of State must consider. However, the present wording is surely too wide and, if I have understood it correctly, would not be subject to subsequent review. Amendment 185A removes this very broad discretion and requires that it must appear to the Secretary of State that safeguards corresponding to the requirements under Clause 141(2) and (5) will apply in relation to disclosure overseas.
The Minister will not be surprised if I make reference to the Szabó v Hungary finding that minimum standards should be set out in law to avoid abuses of power and that,
“it would be contrary to the rule of law … for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power”.
The judgment notes that,
“the law must indicate the scope of any such discretion … with sufficient clarity … to give … adequate protection against arbitrary interference”.
I hope that the Government will feel able to accept the amendment as, if anything, extra safeguards may, indeed, be required where sensitive information is being disclosed abroad. We look forward to the Minister’s response on this.
Lord Keen of Elie
My Lords, as the noble Baroness, Lady Hayter, has observed, Amendment 185A would remove the Secretary of State’s discretion to consider the extent to which the application of corresponding safeguards is appropriate in relation to the sharing with an overseas authority. The Government consider that this is a vital provision and its removal from the Bill would pose a real risk to the national security of this country and other countries around the world. The threat we face from terrorism and serious and organised crime is global. It is inevitable that there will be circumstances where our security and intelligence agencies uncover threats to other countries through intelligence derived from a bulk interception warrant.
In some circumstances, such threats will be against countries with which the United Kingdom has well-established intelligence-sharing relationships, and in such circumstances there are likely to be corresponding safeguards applying to the handling of intercepted material. However, there will be occasions when such intelligence indicates a serious threat to a country overseas, potentially in urgent circumstances, whose authorities simply do not apply the same level of safeguards as those included in the Bill. In such circumstances, it is crucial that the Bill places a duty on the Secretary of State to consider the arrangements that should be in place to regulate the disclosure. This decision will need to balance the risk that the material will not be subject to the same level of safeguards that it would be in this country against the risks to the security of the country in question if material is not shared.
For example, in some circumstances a failure to share intercepted material containing vital intelligence could result in a terrorist atrocity. Even in such a scenario, the amendment would place an absolute prohibition on the relevant intercepted material being shared because the overseas authority does not apply safeguards corresponding to those in the Bill. This would not be a responsible position and I believe it is only right that the Secretary of State must be responsible for deciding the appropriate arrangements for sharing intercepted material with an overseas authority, considering the particular circumstances of each case. In addition to this consideration by the Secretary of State, the safeguards that apply to the use of bulk interception will be subject to rigorous, independent oversight and scrutiny by the Investigatory Powers Commissioner. This will, of course, include the arrangements for the disclosure of intercepted material overseas.
For the reasons I have outlined, it is absolutely crucial that the Bill provides for the Secretary of State to consider the extent to which corresponding safeguards should apply where intercepted material is being shared overseas. The amendment would fetter that consideration and is both unnecessary and potentially dangerous. Accordingly, I invite the noble Baroness not to move it.
Lord Rosser (Lab)
As the noble Lord, Lord Paddick, said, David Anderson QC commented in his report that neither the Bill nor the draft code of practice rules out the future use of the bulk acquisition power for internet connection records. Internet connection records are not currently acquired in bulk but existing legislation already permits the agencies to acquire such records in bulk, albeit there appears to be no present intention to do so.
The effect of this amendment would be to remove an existing legislative provision which could be needed in the future for bulk acquisition—bulk acquisition which David Anderson QC found had contributed significantly to the disruption of terrorist operations and, through that disruption, almost certainly to the saving of lives, and which had also been demonstrated to be crucial in a variety of fields. In addition, any such application in the future to obtain such data by the security and intelligence agencies would be covered by the relevant safeguards in the Bill, including in relation to necessity and proportionality in the interests of national security and the approval process.
This Bill is, among other things, about the appropriate balance between security and privacy. We clearly have a different view from that of some other noble Lords on where that appropriate balance lies. Our view is that, for the reasons I have sought to set out, we are unable to support this amendment and, if it is put to a vote, we shall oppose it.
Lord Keen of Elie
My Lords, this amendment would remove the ability for the intelligence agencies to acquire internet connection records in bulk, an issue we have already discussed in Committee and revisited on a number of occasions, as observed by my noble friend Lady Harding. At the time we debated this in Committee, I highlighted the point now made by the noble Lord, Lord Rosser, that this is not a new power introduced by the Bill. This is an existing power. It exists in legislation, albeit, while it is provided for, it is not at present utilised.
As I explained in Committee, it is vital in the current climate, when methods of electronic communication are changing and developing at an exponential rate, that we provide technology-neutral legislation—a point made by the noble Lord, Lord Rooker. We remain of the view that we would not wish to legislate against the possibility of internet connection records being acquired in bulk, should the agencies make a case—and they must make a case—which demonstrates that this might be necessary and proportionate in the interests of national security.
We strongly believe that it is right that the intelligence agencies have the power to acquire communications data in bulk, and David Anderson supported this in his bulk powers review. The noble Lords, Lord Carlile and Lord Campbell of Pittenweem, alluded to the observations made by David Anderson. I will refer to only one further quotation: he said that,
“bulk acquisition has contributed significantly to the disruption of terrorist operations and, though that disruption, almost certainly the saving of lives”.
The noble Lord, Lord Carlile, alluded to some of the examples that were given by David Anderson and worked through in his report.
Lord Keen of Elie
“(A1) An intelligence service may not retain, or retain and examine, a bulk personal dataset in reliance on a class BPD warrant if the head of the intelligence service considers that the bulk personal dataset consists of, or includes, protected data.For the meaning of “protected data”, see section (Meaning of “protected data”).”
Lord Keen of Elie
My Lords, this group contains a number of amendments specific to Part 7 of the Bill, which covers bulk personal datasets. I first turn to government Amendments 219, 220, 224, 226, 227, 229, 230, 237, 238, 239, 240 and 265, 266 and 267.
In David Anderson QC’s review of bulk powers he stated:
“It has come to my attention that some”,
bulk personal datasets,
“may contain material that is comparable to the content of communications, and in rare cases even material subject to”,
legal professional privilege. He continued:
“In the light of these facts I have already recommended to the Home Office that consideration be given to the introduction of additional safeguards to the Bill and Code of Practice”.
We welcome David Anderson’s review and the attention he has given to these matters. I stress that it is unlikely to be the case that many bulk personal datasets will contain this sort of material, but in those instances where they do, it is right that it is protected appropriately. These amendments ensure that the Bill provides such protection.
Amendment 219 explains that an intelligence agency may not use a class BPD warrant to,
“retain, or retain and examine, a bulk personal dataset”,
that consists of or includes “protected data”. Amendment 220 would insert a new clause which defines what protected data are in this context. In essence, protected data are the same class of data as “content” in the telecommunications context or “protected material” in the equipment interference context. Protected data in a bulk personal dataset may include, for example, the contents of letters, emails or other documents. They do not include identifying data—for example, data that may help to identify persons, systems, services, locations or events—nor do they include systems data, which are data that enable or facilitate the functioning of any system or service.
Lord Keen of Elie
“Meaning of “protected data”
(1) In this Part, “protected data” means any data contained in a bulk personal dataset other than data which is one or more of the following—(a) systems data;(b) data which falls within subsection (2);(c) data which is not private information. (2) The data falling within this subsection is identifying data which—(a) is contained in the bulk personal dataset,(b) is capable of being logically separated from the bulk personal dataset, and(c) if it were so separated, would not reveal anything of what might reasonably be considered to be the meaning (if any) of any of the data which would remain in the bulk personal dataset or of the bulk personal dataset itself, disregarding any meaning arising from the existence of that data or (as the case may be) the existence of the bulk personal dataset or from any data relating to that fact.(3) For the meaning of “systems data” see section 239(4).(4) In this section, “private information” includes information relating to a person’s private or family life.”
Lord Keen of Elie
Lord Keen of Elie
Lord Keen of Elie
“Protected data: power to impose conditions
Where the Secretary of State decides to issue a specific BPD warrant, the Secretary of State may impose conditions which must be satisfied before protected data retained in reliance on the warrant may be selected for examination on the basis of criteria which are referable to an individual known to be in the British Islands at the time of the selection.”
Lord Keen of Elie
“( ) In sub-paragraph (1) “enactment” does not include any primary legislation passed or made after the end of the Session in which this Act is passed.”
Lord Keen of Elie
My Lords, I will now address government amendments relating to definitions and extent, and consequential provisions. They aim to ensure consistency within the Bill and with other statutes. Clause 246 contains the usual power to make amendments to other legislation consequential on the provisions of the Bill. Schedule 8 contains a similar power to make amendments consequential on the provisions in that schedule. As currently drafted, the powers would permit the amendment of legislation passed at any time in future.
The power to make consequential amendments to future enactments is necessary because other Bills before Parliament at the same time as this Bill touch upon the powers and public authorities covered by the Bill—such as, for example, the Policing and Crime Bill. Since it is impossible to predict how those Bills, or the Investigatory Powers Bill, may be amended during their parliamentary passage, and which Bill may achieve Royal Assent first, it is necessary to allow for the possibility of consequential amendment of future enactments.
In its recent report on the powers in the Bill, the Delegated Powers and Regulatory Reform Committee recommended that the powers should be restricted to the amending of future enactments passed or made during the current Session. The Government indicated in Committee in this House that they intended to accept this recommendation. Amendments 243 and 281 give effect to the committee’s recommendation, and I commend them to the House.
Amendments 260 and 271 are technical amendments that remove the definition of “person” from the Bill. The Bill’s definition of “person” in Clause 239 was carried over from the Regulation of Investigatory Powers Act 2000. It does not apply in relation to Parts 2 or 5 of the Bill, and we have concluded that it is not needed in respect of the other parts. The Interpretation Act definition will apply throughout the Bill. The definition of “person” in Clause 239 is therefore not required and Amendments 260 and 271 simply remove it.
Amendment 268 provides definitions of “journalistic material” and “confidential journalistic material”. It makes it clear where the additional protections provided for in Parts 2 and 5 of the Bill, which we debated here on the first day of Report, will apply. It is of course the case that the Government are seeking to protect legitimate journalism while ensuring that those who wish to do us harm cannot hide behind spurious claims of journalism. For this reason, Amendment 268 makes it clear that material acquired or created to further a criminal purpose is not considered journalistic material in the context of the Bill. This seeks to prevent persons such as those in the media wing of Daesh attracting a safeguard intended for legitimate journalists.
Amendments 280 and 286 clarify the drafting in relation to the definition of a postal operator, and to consequential amendments being made to RIPA. These drafting amendments make no changes to the effect of the provisions. Amendments 282, 283, 284 and 292 make minor amendments to the Security Service Act 1989, Intelligence Services Act 1994, Police Act 1997 and Anti-terrorism, Crime and Security Act 2001 in consequence of the updated targeted-interception provisions in Part 2 of this Bill.
Amendment 289 relates to the IPC’s duties to report to Scottish Ministers. Where the Police Act 1997 requires the IPC to report certain matters to Scottish Ministers, this amendment provides that the IPC can do so at any time, as opposed to only in its annual report. Amendment 285 is a minor and consequential amendment. As we have discussed previously, the Bill provides for an interception warrant to be obtained that has the main purpose of obtaining secondary data from communications, rather than intercepting communications content. This amendment simply amends RIPA to make it clear that a notice served under Part 3 of that Act can relate to an interception warrant that has the main purpose only of obtaining secondary data.
Amendment 287 ensures that the provisions of RIPA will make proper reference to powers provided for in this Bill, alongside existing legislative references. It will make two key changes to RIPA. First, it inserts a reference in Section 48 of RIPA to the equipment interference powers provided for in the Bill, which will sit alongside existing references to property interference powers contained in the Intelligence Services Act 1994 and the Police Act 1997. This amendment makes it clear that references to surveillance in Part 2 of RIPA do not include equipment interference activity which will be authorised under the Bill when it becomes the Investigatory Powers Act. This minor amendment will simply ensure consistency with the existing drafting of RIPA.
Secondly, and similarly, the amendment inserts a reference to equipment interference warrants into Schedule 2 to RIPA, which will sit alongside an existing reference to property interference authorisations under Part 3 of the Police Act 1997. Schedule 2 to RIPA relates to the issuing of a Section 49 notice under Part 3 of RIPA. A Section 49 notice allows relevant authorities to require a person to put protected electronic information into an “intelligible form”. In the future, acquisitions of these types of data will be done using equipment interference powers provided for in the Bill, so it is essential that law enforcement agencies continue to be able to use Section 49 notices with the new statutory framework. This amendment ensures that, in future, a law enforcement chief or an appropriate delegate will retain the same powers they currently hold in relation to protected electronic information obtained under existing legislation.
Amendment 288 is a minor, technical amendment that corrects a drafting error in Schedule 10. Paragraph 62 of Schedule 10 amends the Regulation of Investigatory Powers (Scotland) Act 2000 to ensure that Scottish Ministers can issue a code of practice in relation to equipment interference. This amendment clarifies that any such code of practice will be limited to targeted equipment interference so far as it relates to the police service or the Police Investigations and Review Commissioner, and will not relate to bulk equipment interference, a power which is not authorised by Scottish Ministers.
Finally, Amendments 296 to 300 are technical amendments which simply clarify the extent of the provisions of the Bill in relation to the Crown dependencies. They make two key changes. The first is being made following a request from the Isle of Man Government and will enable the extension of any of the provisions of the Bill, with or without modification, to the Isle of Man. This could assist the Isle of Man in ensuring that its legislative framework for law enforcement can be fully up to date and future-proof, enabling greater consistency with UK law.
The second of these changes will provide a more limited extension of provision for the Channel Islands, simply ensuring that any amendments made by the Bill to the provisions of another Act, such as the consequential amendments detailed at Schedule 10, may be extended to the Channel Islands by Order in Council, if that Act contains such a power. Any extension by Order in Council would of course only take place in consultation with the Governments of Jersey and Guernsey, and with their consent, and they would retain the option to make those amendments in domestic legislation instead. These technical amendments will help to clarify the extent of the provisions of the Bill. I beg to move.
Lord Low of Dalston (CB)
My Lords, I shall speak to Amendments 294 and 295, tabled by the noble Baronesses, Lady Hollins and Lady O’Neill, and the noble and learned Lords, Lord Falconer and Lord Wallace. The noble Baronesses very much regret that they cannot be present in the House today, and they have asked me to speak to their amendments. I will be brief, as I understand that, without prejudice to the Government’s ultimate position, the Minister is not seeking to divide the House, and we are all most grateful to him for that.
The amendments would have no impact on the security measures in the Bill, nor would they affect the other measures in the Bill in any way. Their sole purpose is to bring into force automatically after Royal Assent Clause 8 and the new clause that was added to the Bill by this House last week by a large majority.
The amendments would deliver cost protections in hacking cases, which Section 40 of the Crime and Courts Act 2013 was enacted to provide for all publication torts. Section 40 is a key part of the Leveson recommendations that the Government promised to implement but has not been commenced. Non-commencement frustrates the will of Parliament and is a breach of the 2013 cross-party agreement. The commencement of these clauses automatically after Royal Assent is necessary to ensure that the device of non-commencement is not employed again on the amendments that the House passed last week. For these reasons, I commend Amendments 294 and 295 to the House.
Lord Keen of Elie
My Lords, we discussed the substantive points on this issue on day one of Report. We consider these amendments consequential to the ones we discussed then. Although the Government’s position on the substantive issue remains as we set out last week, we are not opposing these amendments.
Lord Murphy of Torfaen (Lab)
My Lords, I shall add some points to what my noble friend has just said. During our rather long deliberations this evening and afternoon, I went to the Library to look up the definition of “draconian”. It seems to me to be very harsh, very severe. Apparently, it goes back to ancient Greece, where Draco was the statesman who decided that every single crime would be dealt with by a death sentence. It is not a good description of the Bill and the shadow Home Secretary is unfair and, I think, mischievous in what she said, because the Bill is significant, extremely serious and very difficult. It tries to balance the importance of security in our country, which was discussed at some length today, and our liberties.
I have to say that in 30 years in Parliament I do not think I have seen a Bill which has been scrutinised quite as well as this—not just by the Joint Committee that we were on in November and December but by other committees as well and, indeed, what we have seen in this House and the House of Commons. Nevertheless, the Joint Committee, at the very end of its deliberations, knowing full well that there would be an enormous amount of scrutiny, looked at what could happen in terms of review of the Bill. The Information Commissioner, indeed, gave evidence to the Joint Committee indicating that he thought there should be a sunset clause. The then Home Secretary, who has gone on to greater things, indicated that this was not appropriate, but the committee believed that parliamentary review of the operation of what will then be an Act should take place within six months after five years. That has been incorporated into the Bill and it is the most important type of scrutiny that could happen, because that would be a Joint Committee of both Houses of Parliament, one hopes, which could look at how the Bill has operated. The reason the Joint Committee said that was because of the hugely grave and serious nature of the Bill—not just because of the way it touches on the liberties of the subject, but protecting the subject as well.
Lord Keen of Elie
My Lords, we remain sympathetic to the desire for ongoing scrutiny of the Bill, and this is already provided for. In these circumstances we suggest that these amendments are not necessary. The Bill requires that the operation of the Act will be reviewed after five years, which is an entirely appropriate period. It is also consistent with the recommendation, as indicated, of the Joint Committee that scrutinised the draft Bill. We must ensure that, before a review takes place, all the Bill’s provisions have been in effect for a sufficient period that a review is justified and can be meaningful. A review after three years, as provided for by Amendments 258A and 258B, runs the risk that this would not be the case.
We also fully expect the review after five years to be informed by a report of a Joint Committee of Parliament, in line with the recommendation made by the Joint Committee. In addition, concurrent with such a review the Intelligence and Security Committee of Parliament would have the opportunity to assess the more sensitive aspects of the operation of the Act. Let us remember that, in addition, the exercise of the powers provided for under the Bill will of course be subject to the ongoing oversight of the Investigatory Powers Commissioner, who will be obliged to make an annual report to the Prime Minister.
The Government have listened to the previous debates in Parliament and amended the Bill to ensure that the Investigatory Powers Commissioner must, in particular, keep under review and report on the operation of safeguards to protect privacy. Furthermore, the Investigatory Powers Commissioner’s reports must be published and laid before Parliament, providing Parliament with ongoing scrutiny of the operation of the Act. Accordingly, I invite the noble Lord to withdraw the amendment.
Lord Paddick
My Lords, I am grateful to the noble and learned Lord for his explanation. We are still of the view that at least once every Parliament, before a general election is called, a Joint Committee of both Houses of Parliament, as suggested by the noble Lord, Lord Murphy, should look at what the Government have been up to during their time in office so that the electorate are fully aware of how the Government have used the Bill. However, at this stage I beg leave to withdraw the amendment.
Lord Keen of Elie
My Lords, this amendment is unnecessary. The Government have already made it clear that the new Investigatory Powers Commissioner will bring together the existing responsibilities of the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner. That includes oversight of the consolidated guidance on the detention and interviewing of detainees. In addition, the Investigatory Powers Commissioner will have a bigger budget and a dedicated staff of commissioners and inspectors, as well as independent legal advisers, to ensure that the highest levels of independent scrutiny are maintained. In these circumstances, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I chose the last words of my remarks quite carefully because it is the statutory basis of the current arrangements that is so important, which is why we raised it at this—I acknowledge—late stage. Obviously, I am glad to have these assurances. They do not answer my question but that position is now on the record. I beg leave to withdraw the amendment.
Investigatory Powers Bill
Lord Keen of Elie ExcerptsMonday 17th October 2016
(7 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
Baroness Hamwee
The noble Lord made a very persuasive case for this amendment and I do not think that he will be surprised to be supported by these Benches, given our concerns about internet connection records—so any further constraint on them is something that we would welcome. But he went into far more detail than that and we support him.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the Government have consistently recognised that care must be applied to the acquisition of internet connection records and, importantly, that they should not be acquired for trivial purposes. That is why we brought forward amendments in Committee to put in place a number of restrictions to provide reassurance that the powers to acquire internet connection records would only ever be used proportionately. These amendments included a threshold which would mean internet connection records could only be used to investigate certain crimes which could attract a sentence of at least six months’ imprisonment.
This amendment raises the threshold for offences which are sufficiently serious that an offender can be sentenced to at least 12 months’ imprisonment, rather than six. The amendment rightly leaves unchanged the important exceptions in the Bill to the crime threshold. The House has recognised the need to ensure that internet connection records can be obtained for the investigation of certain specified types of crime—for example, those relating to cyberbullying and harassment, and those relating to a breach of a person’s privacy—which, for whatever reason, carry a lower sentencing limit.
We recognise that this amendment will provide further reassurance and ensure public trust in the use of these vital powers, whose value and importance have been widely recognised and acknowledged. In these circumstances, we are therefore content to accept the amendment.
Baroness Hamwee
My Lords, Amendment 117B is grouped with government Amendments 118 and 130. It aims at the same thing, but I think that the Government’s aim is better than ours in Amendment 117B. The amendments are about the retention of third-party data, so in order to move the business on we are very happy to support the government amendments in this group. I beg to move.
Lord Keen of Elie
My Lords, I do not understand why the noble Baroness wishes to insist on Amendment 117B.
Sorry, I am getting a great deal of advice from around the Chamber, and it is all immensely helpful.
Perhaps I may explain the purpose of government Amendments 118 and 130. As I said in Committee, we have been making good progress on drafting a clause that could put into the Bill the Government’s clear commitment that we will not require a telecommunications operator to retain third-party data.
It is important to be clear exactly what we are referring to as third-party data. Where one telecommunications operator is able to see the communications data in relation to applications or services running over its network but where it does not use or retain that data for any purpose, then it is regarded as third-party data. For example, if you use an internet access provider such as a home broadband provider to use the internet to log into a separate email provider in order to send an email, the broadband service might be able to see your access communications data in relation to the email service. If that information was not used or retained for any purpose by the broadband provider, the data would be considered to be third-party data.
I am pleased to say that we have now produced a clause that prohibits the retention of third-party data. We have tested this drafting with operational partners and with those telecommunications operators likely to be affected by the legislation and we are confident that it delivers the desired effect. That being so, the Bill essentially replicates the current position in RIPA, which is that data that already exist and could save a life or convict a criminal and so on can be accessed, but we are not insisting that data should be retained.
In these circumstances and in light of the opening observations by the noble Baroness, I commend government Amendments 118 and 130 in the event that we proceed.
Baroness Hamwee
I am sorry to have confused the noble and learned Lord. I was simply trying to explain that we are seeking to achieve the same thing, but that the Government have done better than we have. I beg leave to withdraw the amendment.
Lord Keen of Elie
“(3A) A retention notice must not require an operator who controls or provides a telecommunication system (“the system operator”) to retain data which—(a) relates to the use of a telecommunications service provided by another telecommunications operator in relation to that system,(b) is (or is capable of being) processed by the system operator as a result of being comprised in, included as part of, attached to or logically associated with a communication transmitted by means of the system as a result of the use mentioned in paragraph (a),(c) is not needed by the system operator for the functioning of the system in relation to that communication, and(d) is not retained or used by the system operator for any other lawful purpose,and which it is reasonably practicable to separate from other data which is subject to the notice.”
Lord Rosser
The effect of this amendment, as has been said, would be to leave out internet connection records from the definition of “relevant communications data” in Clause 84, which covers powers to require the retention of certain data. The Bill has had extensive pre-legislative scrutiny, including by a Joint Committee of both Houses, and we supported it at Third Reading in the Commons subject to, among other things, amendments being made which addressed the issue of access to internet connection records not being used in relation to minor crimes. Our amendment on the definition of “other relevant crime”, which raised the threshold from six months to 12 months, has been accepted by the Government. We will be opposing an amendment that now appears to weaken the effectiveness of the provisions relating to internet connection records, at least under Part 4 of the Bill, specifically Clause 84.
Lord Keen of Elie
My Lords, the amendment would prevent the Government being able to require telecommunications operators to retain internet connection records. The noble Lord, Lord Paddick, tabled exactly the same amendment in Committee, and he will not be surprised to know that the Government still cannot support such an amendment. As the noble Lord, Lord Harris of Haringey, and the noble Baroness, Lady Harding, observed, these provisions may not give rise to a perfect system of record recovery but it is preferable to a dark hall where criminals move unseen and with impunity.
The noble Lord, Lord Paddick, talks of observations from the Security Service and the Secret Intelligence Service, but be it noted that it is not for them that these records are so essential; it is for the police forces and the enforcement agencies in respect of crime. I have spoken at length to the National Crime Agency, which has underlined to me the critical nature of these records now that telecommunications data are so often routed through the internet, not by means of normal telephony.
Earlier today this House recognised the importance of the use of internet connection records, subject to strict safeguards, as noted by the noble Lord, Lord Rosser. I do not think this House will want to prevent internet connection records being retained with the result that they are not available for any form of criminal investigation. Indeed, we have just discussed the government amendment to require judicial approval before a data retention notice can be given, which, as I said at the time, puts in place a significant new safeguard before a telecommunications operator can be required to retain the data.
There has been considerable debate on this topic, not just today but as the Bill has progressed through Parliament. However, in relation to this amendment, I should perhaps reiterate why internet connection records are so essential for law enforcement. As communications increasingly take place via the internet, information that used to be routinely available to law enforcement from telephone-based communications data is increasingly unavailable—for example, the identity of an individual suspected of sharing indecent images, or people with whom a missing person was last in contact. Internet connection records are essential because they will ensure that the type of communications data that were previously available to law enforcement will remain available in future, not perfectly but generally. It will help to ensure that terrorists and criminals cannot evade detection simply because they choose to communicate online.
The noble Lord, Lord Paddick, observed that there may be applications or social media apps on a device that maintain a persistent connection to a service. That is true, but even in such cases the relevant ICR will signpost the service access by the device, enabling a public authority to make further inquiries with the service provider, which is identified through the ICR. ICRs will allow law enforcement to approach online service providers to acquire communications data where it is known that a specific device has accessed their service. So it is not the case that simply because you have open or permanent connections, the use of ICRs is rendered useless; that is simply not accepted.
The alternatives available to the security and intelligence services are not available to the police, and certainly cannot be adduced in a court of law. The police can acquire communications data only on a case-by-case basis where necessary and proportionate, and where they have made strong operational cases as to why they need to retain these records. Equally, the intelligence agencies may acquire data only for their own statutory purposes, which are far narrower than the criminal types investigated by the police. It is also the case, as I mentioned before, that intercept material from the agencies may not be used as evidence in court, a position that has been upheld by numerous independent inquiries over the years, most recently by a panel of the Privy Council in 2014.
Giving evidence to the Public Bill Committee, the noble Lord, Lord Reid, and Charles Clarke, previous Home Secretaries, were asked whether ICRs were a key part of updating legislation to the current world, and they both definitely agreed. Indeed, one could go further. The noble Lord, Lord Paddick, alluded to the observations of the Joint Committee on the draft Bill. Let us look at its conclusion:
“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.
The Government recognise the sensitive nature of internet connection records, which is exactly why we had our earlier debate concerning the safeguards that must surround their recovery. The point has already been made that those records will not give access to the content, it is the record of connection that will be recovered.
I appreciate that the noble Lord, Lord Paddick, still has concerns about internet connection records, and I fear that nothing I say will convince him otherwise, but I again reassure him that we have all the right safeguards in place. Data can be retained only when necessary and proportionate and following authorisation and approval by the Secretary of State and a judicial commissioner. We have mechanisms in place to ensure that data are held securely, including audit by the Information Commissioner. Once the data are retained, they can be accessed only on a case-by-case basis, and only when judged necessary and proportionate by a senior officer at a rank specified by Parliament who is independent of any investigation being carried out. Strong judicial oversight will be provided by the Investigatory Powers Commissioner and, thanks to the changes made by this House, internet connection records cannot be acquired for minor offences, an amendment we discussed earlier.
In summary, internet connection records are a vital power. As to their cost, I believe that the figure given at a previous stage was £174 million over a period of 10 years. That is a not inconsiderable sum, but a manageable figure in the context of what we face with police powers. Accordingly, I invite the noble Lord to withdraw the amendment.
Investigatory Powers Bill
Lord Keen of Elie ExcerptsMonday 17th October 2016
(7 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
Lord Keen of Elie
“(8A) Subsection (8) does not apply to the function of the Investigatory Powers Commissioner of making a recommendation under subsection (4)(e) or making an appointment under section (Members of the Panel)(1).(8B) The delegation under subsection (8) to any extent of functions by the Investigatory Powers Commissioner does not prevent the exercise of the functions to that extent by that Commissioner.(8C) Any function exercisable by a Judicial Commissioner or any description of Judicial Commissioners is exercisable by any of the Judicial Commissioners or (as the case may be) any of the Judicial Commissioners of that description.(8D) Subsection (8C) does not apply to—(a) any function conferred on the Investigatory Powers Commissioner by name (except so far as its exercise by any of the Judicial Commissioners or any description of Judicial Commissioners is permitted by a delegation under subsection (8)), or(b) any function conferred on, or delegated under subsection (8) to, any other particular named Judicial Commissioner.”
Lord Keen of Elie
My Lords, this group contains a variety of government amendments relating to oversight arrangements.
Amendments 133 and 149 clarify the delegation of functions by the Investigatory Powers Commissioner or judicial commissioners. They make clear that certain judicial functions of the IPC or judicial commissioners cannot of course be delegated to staff. The amendments also make clear that, where the Bill requires a judicial commissioner to undertake a task, any of the judicial commissioners can perform that duty. However, the IPC can still delegate a function or functions to an individual judicial commissioner in order to create a de facto deputy, should he wish to do so. Delegation of certain functions is sensible and allows for a flexible and efficient working environment. Of course, it would be inappropriate if the IPC could delegate to a judicial commissioner the ability to recommend individuals to be appointed as judicial commissioners and so this function is reserved to the IPC.
Amendment 149 puts beyond any doubt that the inspectors and expert advisers who work for the Investigatory Powers Commissioner or a judicial commissioner will be working with their full delegated authority. This responds to concerns raised by the noble Baroness, Lady Hamwee, in Committee. We have been clear that the Investigatory Powers Commissioner will lead a powerful new oversight body which will rely on the work of inspectors and technical experts alongside the commissioners themselves. Those working under the authority of the commissioner will have the same right to access and interrogate information that the commissioners themselves would have. This amendment puts that beyond doubt. It makes it clear that commissioners can, formally and in accordance with statute, delegate some of their functions to the staff working for them.
However, it is right that not all functions should be capable of delegation. There are some activities and decisions, such as decisions to approve the use of powers, that should rightly be undertaken by judges. Therefore, this amendment also prevents those types of activities and decisions from being delegated to members of staff. These amendments strike the right balance between allowing members of staff to claim the full authority of the commissioner while reserving key judicial functions to those who are appropriately qualified to undertake them. I hope that that brings some satisfaction to the noble Lord, Lord Paddick, who was concerned to anticipate whether these amendments would go as far as he hoped; I believe that they do.
Amendment 135 is intended to provide further clarity about when a commissioner does not need to consider the duties set out in Clause 207(6) and (7). I hope that the House will agree that while the Investigatory Powers Commissioner and the judicial commissioners who will be working for him or her will be performing vital functions, it is important that the actual performance of those functions does not damage the public interest. Subsections (6) and (7) set out a number of duties on the commissioner: for example, that they should not act in a way that in their own opinion is prejudicial to national security, nor should they act in a way that they consider would compromise the safety of those involved in a security operation.
When the Joint Committee on the Draft Investigatory Powers Bill considered the first incarnation of this clause, it expressed concern that the duty placed on the commissioners as set out in these subsections was too broad. The Government then carefully considered this clause and agreed that there should be occasions on which a commissioner was not caught by these additional duties. For example, we put it beyond doubt that a commissioner could refuse to approve the decision to issue a warrant without worrying that they were breaching their duties in relation to national security. This amendment goes further still along that same path. It increases the list of circumstances in which a judicial commissioner will not be subject to the duty contained in subsections (6) and (7). The amendment expands the list to include all circumstances in which a judicial commissioner could be said to be exercising a “judicial function” or taking a judicial decision. I hope that this provides the House with further reassurance that we do not intend subsections (6) and (7) to be unduly limiting upon the important work of the commissioners.
Clause 223 provides for membership of the Technical Advisory Board, a non-departmental public body that advises the Secretary of State on cost and technical grounds if a notice given under Parts 4 or 9 of the Bill is referred by a telecommunications operator for review. Membership of the board must include a balanced representation of those on whom obligations may be imposed by virtue of notices and of those persons entitled to apply for warrants or authorisations under the Bill. At present, subsection (2)(a) of this clause requires that the membership of the board must include persons on whom obligations could be imposed by virtue of a data retention notice or technical capability notice—namely, telecommunications operators. Government Amendment 177 makes a minor change to this provision to add persons on whom obligations could be imposed by a national security notice. The amendment will not change the scope of the persons who must be represented on the board; indeed, a national security notice may only be given to a telecommunications operator. However, this minor change will make the meaning of the provision more clear.
Amendment 136 is a minor amendment to Clause 207, clarifying the policy intention that the Investigatory Powers Commissioner should be able to review the decisions of other judicial commissioners should this be necessary.
Amendments 137, 263 and 274 move the definition of a “statutory function” to Clause 239 alongside other definitions.
I turn now to Amendment 146. In Committee, the noble Baroness, Lady Hamwee, sought further clarity as to precisely who is covered by the definition of a “member” of a public authority. Having reflected on the matter, I can see that perhaps this definition is not as clear as it could be. Therefore, the Government have introduced this amendment to be clear that everyone who works for a public authority or who has worked for a public authority in the past will have to provide the IPC with all necessary assistance. I hope that that gives the House reassurance that the IPC will be able to hold those public authorities properly and clearly to account.
Amendment 147 is intended to put beyond doubt the fact that the Investigatory Powers Commissioner will have access to advisers, be they legal, technical or of any other nature, that the commissioner feels is necessary to undertake their statutory functions. This amendment provides that the Secretary of State, after discussion with the IPC, must provide the commissioner with services as well as with staff, accommodation, equipment and facilities. I would like to be clear, though, that the commissioner will be entirely free to choose their own advisers and that the Secretary of State will merely supply the resources to pay for those advisers. This will allow the commissioner flexibility to “buy in” whatever advice they need at whatever time.
Amendments 154 to 156 are technical amendments providing additional certainty around the definition of the chief and other surveillance commissioners who are being abolished by the Bill and replaced by the Investigatory Powers Commissioner.
Clause 221 already makes a number of amendments to Sections 65, 67 and 68 of RIPA in relation to the functions of the Investigatory Powers Tribunal. Amendments 163 to 175 are further technical amendments simply updating the relevant provisions of RIPA to ensure that it is clear that the Investigatory Powers Tribunal has the jurisdiction to investigate any claims or complaints relating to the provisions of the Investigatory Powers Bill. I beg to move.
Baroness Hamwee
My Lords, we welcome the amendments in this group. The provisions on delegation are indeed extremely helpful, as we were concerned about the chain of command and chain of responsibilities. I am glad to see the little amendment about being a “member” of a local authority—or HMRC, which I think was the other example I used. I had thought I was maybe going a bit too far in raising that point, but I am glad that I did. I am also glad to see the insertion of the reference to services for the IPC, which we were also concerned about. Having said that, we are happy with these amendments.
Lord Rosser
I appreciate that I may be speaking prematurely since the Government have not moved their amendment on the Technology Advisory Panel. On the basis that they are not about to stand up and withdraw it, I thank the Government for the amendment establishing a Technology Advisory Panel, which reflects the recommendation by David Anderson QC in his report on the bulk powers provisions in the Bill, a report that we had secured during the passage of the Bill in the Commons and a recommendation on which we had an amendment in Committee in this House.
Lord Keen of Elie
I am obliged to the noble Lord, Lord Rosser, and will resist the temptation that he laid in my path. As he observed, the government amendments have been tabled to give effect to the recommendation of David Anderson’s bulk powers review.
The review demonstrated that the bulk powers are crucial. Mr Anderson’s report concludes that the powers,
“have a clear operational purpose”,
and,
“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”,
and that, where alternatives exist to their use,
“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or – crucially – slower”.
The review also concludes that bulk powers are vital across the full range of security and intelligence agency activity, including counterterrorism, cyberdefence, combating child sexual exploitation and organised crime, and supporting military operations; and that they have been used to disrupt terrorist activity, prevent bomb attacks, facilitate the rescue of hostages, thwart cyberattacks and save lives.
Mr Anderson’s report included a single recommendation, which was:
“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—
that is, the Investigatory Powers Commissioner—
“to advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability and development of techniques to use those powers while minimising interference with privacy”.
Following careful consideration of this recommendation, we agree with Mr Anderson’s assessment that those authorising, approving and overseeing the exercise of bulk powers must be alert to the impact of technological change on those powers’ utility and impact. These amendments therefore give effect to Mr Anderson’s recommendation in full.
The amendments provide that a Technology Advisory Panel must be established by the Investigatory Powers Commissioner and, in line with Mr Anderson’s recommendation, members of the panel would be appointed by, and clearly accountable to, the commissioner. They also provide that the role of the panel is to advise the Investigatory Powers Commissioner, the Secretary of State and Scottish Ministers on precisely those matters set out in David Anderson’s recommendation —namely, the impact of changing technology on the exercise of investigatory powers, and the availability and development of techniques to use such powers while minimising interference with privacy. The Investigatory Powers Commissioner would have the power to direct the panel to provide advice on any issue relevant to these matters.
While David Anderson’s review was in relation specifically to the bulk powers in the Bill, we agree with his view that there is no reason to restrict the scope of the Technology Advisory Panel just to those powers. Indeed, the panel giving advice in relation to the targeted powers could be just as valuable. As such, the amendments make clear that the panel’s role would extend to providing advice on all investigatory powers whose exercise is subject to review by the commissioner, which of course includes all the investigatory powers under the Bill.
To ensure that the panel would be able to undertake its role effectively, the amendments also make clear that its members would have the same right to access information as judicial commissioners. This means that any relevant person, such as any member of a public authority, must disclose or provide to a member of the panel all such documents and information as that member may require in order to carry out their functions.
We also agree with David Anderson that it should be mandatory for the Technology Advisory Panel to produce an annual report on the exercise of its functions. The amendments would therefore require that the panel make such a report to the Investigatory Powers Commissioner as soon as reasonably practicable at the end of each calendar year. At the same time as providing the report to the commissioner, a copy would also need to be sent to the Secretary of State and to Scottish Ministers where the report related to matters for which Scottish Ministers are responsible. To ensure sufficient transparency about the panel’s work, the amendments would require the Investigatory Powers Commissioner to include information about the work of the panel in their annual report.
I turn to the opposition amendments that have been tabled to the new clause establishing the Technology Advisory Panel. The first of these amendments would expand the role of the panel explicitly to provide advice to the commissioner on safeguards. While I appreciate what is intended by the amendment, I do not think it is necessary. The panel’s role is to advise on the impact of changing technology on the exercise of investigatory powers. Therefore, if technology changes in a way which means that existing safeguards are no longer appropriate or if new safeguards are needed to protect privacy, the panel can provide such advice to the commissioner and the Secretary of State. The panel must provide advice when asked to do so, but may also provide advice as it considers appropriate. While I appreciate the intent behind the amendment, I believe that the clause as drafted already provides for such advice to be given by the panel. Therefore, I do not believe that the noble Baroness’s amendment is necessary.
The second amendment to which she referred would expand the role of the panel to provide advice on an additional matter, namely,
“the impact of changing technology on the interpretation of the law and any amendments to legislation required to ensure the application of the provisions of this Act to changed technology”.
This amendment is neither necessary nor desirable. The role of the panel would, rightly, be squarely to provide advice on the impact of technology on the exercise of investigatory powers. This clearly defined role will ensure that members of the panel will be exactly what we need them to be: technical experts. David Anderson’s recommendation was designed to fill a gap. He was conscious that the Investigatory Powers Commissioner and judicial commissioners will be senior judicial figures. So, while they will be experts in the law and the interpretation of the law, they will not necessarily be experts in technology. What he felt was needed, and what the Government agree is needed, is technical experts to provide technical advice. In seeking to expand the panel’s remit to provide legal advice as well, I strongly fear we would end up with lawyers rather than technical experts. Indeed, David Anderson specifically warned that,
“the technological expertise of the TAP should not be unduly diluted”.
I pause to wonder whether one could ever dilute something with a lawyer, but I continue. That is exactly what this amendment would do, and that is why we firmly believe that it should be resisted.
This brings me to the amendment, which would permit the commissioner to make a report on his or her views about the legal operation of the Bill but would not place a duty on the commissioner to do so. I appreciate the sentiment behind the amendment, but I believe it is unnecessary. Clause 212 already gives the Investigatory Powers Commissioner a very wide remit to report on any matter relating to the functions of the judicial commissioners. That will, of course, permit the IPC, as he or she thinks fit, to report on the legal interpretation of the Bill. However, I hope that the IPC will not feel it necessary to do so, or at least to do so often. That is because the Bill serves to put beyond doubt the powers available to the state and the safeguards that apply to them. In the words of David Anderson, the Bill,
“restores the rule of law and sets an international benchmark for candour”,
but if the commissioner felt the need to report on the legal operation of the Bill, he could already do so.
Finally, Amendment 178C would require the panel to have regard to the same matters which a public authority must have regard to, as set out in Clause 2, which is referred to as the privacy clause. I appreciate the spirit of this amendment, but I believe it is unnecessary. Clause 2 is already clear that whenever exercising certain powers, such as to authorise warrants, all public authorities must have regard to the issues outlined in the privacy clause, but of course the Technology Advisory Panel will not be exercising such powers, so the amendment does not, in that context, make sense. If the intention is that when the panel gives advice it should bear in mind the various privacy considerations contained in Clause 2, then the amendment is also unnecessary, since the requirement, contained in government Amendment 178, that the panel advise on,
“the impact of changing technology on the exercise of investigatory powers”,
already includes advising on the ability to exercise those powers within the statutory framework and subject to all the safeguards contained in the privacy clause. Of course, the whole point of the Technology Advisory Panel, as specified in the government amendment, is to advise on techniques to “minimise interference with privacy”. So I really think that this amendment is unnecessary.
I invite the noble Baroness to withdraw the amendment.
Baroness Hamwee
My Lords, with the leave of the House, I recognise that this is Report stage. I was aware, of course, that the panel will not be a public authority, and that is why I framed Amendment 178C as I did: the Technology Advisory Panel would need to,
“have regard to the matters”,
in Clause 2, rather than be bound by them. I suggested the amendment because subsection (1)(b) of government Amendment 178 talks about, “minimising interference with privacy”, and that seemed to me not nearly as strong as the privacy clause, Clause 2, which we took to bits but welcomed earlier in the passage of the Bill. I beg leave to withdraw Amendment 134A.
Lord Beith (LD)
To pose a legal challenge which is not based on any instance or evidence of the basis on which such a challenge could be made—I certainly cannot think of a basis on which someone could require the production of knowledge of the means used for interception, based on existing legislation.
Lord Keen of Elie
Amendment 137A seeks to insert a provision into the Bill that would require the Investigatory Powers Commissioner to notify the subject of a targeted interception or equipment interference warrant in certain circumstances. The amendment tries to tightly draw those circumstances, and I am grateful to the noble Lord, Lord Paddick, for recognising in drafting it that a significant number of factors should rightly preclude such notification from taking place. Nevertheless, I still think the amendment could threaten to undermine the capabilities that law enforcement and the security and intelligence agencies rely on to pursue the most serious wrongdoers. The amendment recognises that notifying a person that they have been the subject of surveillance may have an immediate impact on an investigation—or it may have damaging effects on the public interest or national security more broadly.
That being the case, it is extremely difficult to envisage a scenario where notification could responsibly be allowed to occur. Notifying a person that their communications have been intercepted, irrespective of whether that notification included any further details about the methods used, would necessarily risk hindering a future investigation. For example, there will be circumstances where a terrorist or serious criminal who was previously the subject of a warrant will no longer be an active suspect in an investigation. Advising that individual that they have been the subject of interception may help them to evade detection if they were minded to return to or resume criminal activity.
On one reading, then, the amendment would not provide for disclosure other than where a person has been the subject of deliberate wrongdoing or a serious error. If that is the intention behind the amendment—and I fear it is not—it is redundant, because there is already provision in the Bill to notify people who have been the subject of serious errors.
The alternative, of course, is that the amendment should provide for individuals to be notified in a wider range of circumstances. I find that prospect troubling. As I say, it is never possible to know whether an individual will return to criminality in the future. Even if they do not, revealing the fact that they were the subject of a warrant may provide some small insight into the techniques and capabilities used by law enforcement and the security and intelligence agencies. That, in turn, would provide an avenue for the most determined and capable actors to piece together a picture of the agencies and how they work, handing an advantage to those we are working hard to pursue—let alone the prospect that they might seek disclosure by way of a review of the conduct of the authorities in order to determine exactly what methodology had been employed. For all these reasons, I hope the noble Lord will be prepared to withdraw this amendment.
I turn to Amendments 137B to 137F, which, as the noble Lord indicated, are in a sense consequential on his primary amendment, and which deal with error reporting as provided for in Clause 209. Clause 209 is of the utmost importance. It provides that if a person has been the subject of a serious error, and it would not be contrary to the public interest, the commissioner must inform that individual of the error and their right to apply to the Investigatory Powers Tribunal. The judicial commissioner must provide such details as considered necessary for the person to bring a claim.
Clause 209 seeks to maintain a very delicate balance between two important but competing interests. On one hand, there is the right of the individual who has suffered harm as a result of the error to seek some sort of redress. On the other, there is the long-standing security and intelligence agency principle of neither confirming nor denying that an individual has been the subject of investigatory powers. This principle is vital to the security and intelligence agencies, as it prevents those who would wish to do us harm launching spurious complaints and claims in order further to understand the agencies’ most sensitive capabilities. I hope the noble Lord will agree that, given the fine balance between these two principles, it is right that the decision be taken on a case-by-case basis by the commissioner, a senior member of the judiciary who will have full access to the facts on which to base their decision.
Amendments 137B and 137C would remove the commissioner’s discretion to make that judgment. He would no longer be able to consider how the wider public interest would be best served, and would instead be compelled to tell an individual if they had been the subject of a serious error, regardless of the consequences and the harm that might be caused. I do not think that is right. It is, for example, conceivable that an investigation into a dangerous criminal gang may result in action mistakenly being taken against an innocent associate of one of the gang members. That would be unfortunate, and the commissioner would undoubtedly want to ensure that remedial action was taken at an appropriate time. But before doing so, it is right that the commissioner should consider the public interest in informing the person, balanced against the risk of undermining an ongoing investigation, and that is what the clause as drafted provides for.
Amendment 137D seeks to require notification where the error has not caused serious harm or prejudice but may do so in the future. I do not think it necessary or appropriate, given the difficult balance that has to be struck here, for persons to be informed when there is such an error. This would put the commissioner in the difficult position of speculating on potential future consequences. Additionally, the commissioner does not get only one opportunity to assess the harm that has occurred. We would of course expect the commissioner to keep under review the consequences of an error and, if it resulted in harm at some point in the future, it would be open to the commissioner to inform the individual at that point. This seems a more sensible approach than putting the commissioner in the position of second-guessing what potential future consequences may one day occur or not occur.
Lord Keen of Elie
“(3A) In addition to consulting the Secretary of State under subsection (3), the Judicial Commissioner must also consult the Scottish Ministers if it appears to the Commissioner that providing the advice or information might be prejudicial to—(a) the prevention or detection of serious crime by a Scottish public authority, or(b) the continued discharge of any devolved functions of a Scottish public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.(3B) In subsection (3A)—“devolved function” means a function that does not relate to reserved matters (within the meaning of the Scotland Act 1998), and“Scottish public authority” has the same meaning as in the Scotland Act 1998.”
Lord Keen of Elie
My Lords, I shall speak to Amendment 138 and the other amendments in this group, which would ensure that the Scottish Government are provided with appropriate means to engage with and support the work of judicial commissioners relating to devolved powers in Scotland.
Clause 210 allows a judicial commissioner to provide advice and information to any person. It requires the judicial commissioner to consult the Secretary of State first where providing advice and information might be contrary to the public interest. It is clearly appropriate that Scottish Ministers are similarly consulted if the provision of advice and information by the judicial commissioner may be prejudicial specifically to activities that fall under those Ministers’ responsibility. Accordingly, Amendments 138 and 139 would require the judicial commissioner to consult additionally the Scottish Ministers when providing information and advice that may be prejudicial to the prevention or detection of serious crime in Scotland, or the continued discharge of any devolved functions of a Scottish public authority.
Clause 216 sets out the funding arrangements for the Investigatory Powers Commissioner and the judicial commissioners. Amendment 148 would grant the Scottish Ministers the power to make such payments as they consider appropriate to judicial commissioners for work relating to the exercise of devolved functions by public authorities in Scotland. This simply maintains the current position, as the Scottish Government currently have the power to pay surveillance commissioners who carry out their functions wholly or mainly in Scotland such allowances as the Scottish Ministers consider appropriate. The surveillance commissioners will be abolished by the Bill, and their functions taken on by the Investigatory Powers Commissioner and the judicial commissioners. Accordingly, I beg to move Amendment 138.
Baroness Hamwee
My Lords, the noble and learned Lord may have answered one of my questions about Amendment 148. It was about whether this sort of arrangement is in place elsewhere because, on reading it, it seemed that there might be scope for some squabbles as to who should be responsible for paying how much. However, I think he said that this is already working satisfactorily under the current arrangements. My other question is about the term “allowances”, which in normal language means less than paying salaries. It does not address payment for facilities, infrastructure and so on. It seemed a curious term to use but that is probably because I do not understand quite how the system will work. Allowances, to most of us, sounds like more like an ex gratia arrangement.
Lord Keen of Elie
Might I be permitted to respond briefly to the noble Baroness on these points? First, these amendments have been agreed with officials in the Scottish Government and reflect an existing arrangement whereby the allowances of surveillance commissioners are determined by the Scottish Ministers in that context. “Allowances” is used there, as I understand it, because we are not relying upon them for payment of certain standing charges incurred in setting up the commissioners, for example.
Investigatory Powers Bill
Lord Keen of Elie ExcerptsTuesday 11th October 2016
(7 years, 6 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-I(Rev)(a) Amendment for Report, supplementary to the revised marshalled list (PDF, 51KB) - (11 Oct 2016)
Lord Rosser (Lab)
As I understand the situation, the Independent Reviewer of Terrorism Legislation, David Anderson QC, was consulted by the Government on whether it would assist him in his role if he had the support of a privacy and civil liberties oversight board. The outcome was that the independent reviewer is now supported instead by the provision of specialist legal assistance, as David Anderson himself recommended in his 2014 annual report.
David Anderson announced the appointment of three specialist advisers, whom he had personally selected, earlier this year and to the best of my knowledge the independent reviewer has welcomed that approach. Given the measures in this Bill, including provision for the Investigatory Powers Commissioner and his or her role in protecting civil liberties, and the changes made as a result of recommendations of the different independent committees which looked at the Bill as originally worded—including a Joint Committee of both Houses—and the further changes and commitments made both during the Bill’s passage through the Commons, which led to us voting for it at Third Reading, and in this House, it is not clear what an additional board would positively contribute. We cannot support the amendment.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, it may appear that there is little I can add, but I have my brief.
Considerable praise has been expressed throughout the passage of this Bill for the work of David Anderson QC, whose report, A Question of Trust, provides the backdrop to this legislation and whose subsequent review of the operational case for bulk powers has informed our scrutiny of Parts 6 and 7. There can be no doubt about the importance of Mr Anderson’s office, that of the Independent Reviewer of Terrorism Legislation.
Following the passage of the Counter-Terrorism and Security Act 2015, which has been alluded to, the Government undertook a consultation on whether David Anderson would benefit in his role from the support of a privacy and civil liberties oversight board. Having been informed by a public consultation on the board’s establishment, by David Anderson’s own recommendations on this matter and by the need to ensure the best value for public money, the Government decided that they could most effectively support the reviewer in discharging his statutory functions by instead providing him with specialist legal assistance in the form that he himself recommended—as noted by the noble Lord, Lord Rosser.
Baroness Hamwee
My Lords, this might be a mouse after the last amendment but it is not unimportant. It is about transparency—and perhaps more than transparency. It is about positively putting information into the public domain and not simply providing information which can be looked through. It is, if you like, a companion to the very welcome privacy clauses in the Bill. It is intended to help the citizen understand what is going on and to enable operators to put into the public domain the warrants and so on with which they have to deal. It provides that they will not commit an offence by disclosing not details but the number of warrants, the number of accounts and the number of warrants complied with, going back only for a limited period of six months. The second limb of the amendment —that they can do more, or more can be done by whoever, if the Secretary of State agrees it—should go almost without saying.
I am told, and would welcome confirmation if the Minister can give it, that the Government are considering regulations to introduce a clear framework for transparency and that provisions such as this might fall within those. To that extent, my amendment is a probing amendment.
User transparency around engagement with law enforcement and government agencies is a key component of accountability to users. It is a prerequisite too, I would say, of redress. Given that the Government are committed to greater transparency than we have had hitherto through this Bill, and to this being a world-leading piece of legislation, I hope that they will be sympathetic to the provisions proposed. The amendment would permit providers to publish statistical data and would complement the Investigatory Powers Commissioner’s annual report, looking at the issues through a different lens and from another perspective. I beg to move.
Lord Keen of Elie
My Lords, it is the Government’s view that a new public reporting clause, as proposed by this amendment, is unnecessary. I will seek to explain why.
Clauses 55 and 125 already provide for the Secretary of State to make regulations that will permit operators to report information in relation to the number of interception and equipment interference warrants they have given effect to. Furthermore, the Government have proposed amendments to these clauses to give more flexibility to permit operators to publish greater statistical information about the warrants they have received. In response to a point made by the noble Baroness, Lady Hamwee, I can tell the House that it is the Government’s intention that the regulations will permit companies to publish details relating to the number of warrants they have given effect to and the number of customer accounts to which these warrants refer.
However, as was previously discussed in Committee, we need to be very careful about any exemptions to prohibitions on revealing sensitive information and the extent to which they might reveal the capabilities of the agencies. It is already the case that terrorists and criminals change their behaviour and the means they use to communicate to evade detection, and we must not give them further information that would help them to do so.
The Secretary of State must have the ability to protect the technical capabilities deployed by law enforcement and the security and intelligence agencies by setting out the way information relating to warrants may be reported—for example, the time period between being served with a warrant and publication of that information, or the bandings to be used for reporting on the numbers of warrants received. It is our view that the level of detail required is appropriate for such conditions to be provided for in regulations, not in the Bill.
The Government will of course continue to work closely with telecommunications operators on their transparency reporting. We have already discussed the proposed content of the draft regulations with them. Indeed, the government amendments to Clauses 55 and 125 reflect our efforts to address issues raised by operators in response to this consultation. Of course, also, the regulations issued under Clauses 55 and 125 will in due course be subject to parliamentary scrutiny.
It is therefore our view that the Bill and the Government amendments already provide for what these amendments seek, in in a way that allows companies to be transparent and the Government to protect sensitive capabilities. Accordingly, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I thank the noble and learned Lord for that response. What we are really being told is that the fleshing out of transparency provisions that I seek is in train. I of course understand points such as the need to consider exceptions.
I am prompted by this to mention a question that I should perhaps have asked the Government a little while ago, but I think all noble Lords will be interested. I am not expecting the noble and learned Lord to respond to this instantly, but we would all be interested to know the timetable for introducing regulations. We know there is a deadline of the end of this year because of DRIPA coming to the end of its natural life, but I assume the Bill cannot operate without a lot of secondary legislation. I wonder whether there could at some point be an indication of not only how the Government propose to deal with regulations but how the House, which is generally very supportive of the thrust of the legislation, despite one or two bits and pieces, can be helpful without losing its proper role of scrutinising regulations.
I should not perhaps take time on Report to be as pompous as that sounds. It is intended to be both an inquiry and an expression of concern about a matter that is for Parliament, not just the Government. Having said that, and welcoming the information about the work going on on this subject, I beg leave to withdraw the amendment.
Lord Rosser
I, too, have sympathy with many of the points made by the noble Baroness, Lady Jones. If there were to be a requirement for reasonable suspicion in addition to requiring decisions to be necessary and proportionate, because the two are not the same thing, one could envisage a situation—for example, in a kidnap case—where it could make life rather more difficult. In such a case, it might not be known whether it was a kidnap or simply a person who had gone missing.
Lord Keen of Elie
My Lords, as indicated by the noble Baroness, the amendments would provide that a targeted interception or equipment interference warrant could be issued in the interests of preventing or detecting serious crime only where there was a reasonable suspicion that a serious criminal offence had been or was likely to be committed.
The amendments are simply not necessary. I assure the House that for a warrant to be issued for the prevention or detection of serious crime, a sufficiently compelling case will always be required. A speculative warrant could never be approved, so these amendments address a concern that is fundamentally misplaced.
The Bill already provides strict and robust safeguards that ensure that a warrant may be issued only where it is necessary and proportionate. That is a well-established test. This decision must be approved by both the Secretary of State and a judicial commissioner. I pick up a point made by the noble Lords, Lord Paddick and Lord Rosser: in the case of a warrant for the prevention and detection of serious crime, the test of necessity and proportionality simply could not be met where there was not a reasonable suspicion that a serious crime had been or was likely to be committed. In these circumstances, I invite the noble Baroness to withdraw the amendment.
Baroness Jones of Moulsecoomb
I thank the noble and learned Lord for his answer. I never tire of telling this House that I was targeted by the Met police, monitored by them and put on to a domestic extremist database with, I would argue, absolutely no cause. Noble Lords will forgive me if I do not quite believe that there are enough safeguards. Quite honestly, I wonder if in five or 10 years I will have the opportunity to come to Ministers and say, “I told you so”. However many safeguards are put in, without strengthening them and making them absolutely clear you leave the door open for abuse. We have seen it in the past. We know very well that part of this Bill’s meaning is to cover abuses of previous legislation. I am deeply unconfident about the safeguards proposed, as are other organisations outside the House. I beg leave to withdraw the amendment.
Lord Keen of Elie
Lord Keen of Elie
My Lords, the Government have listened carefully to concerns expressed in this House and by the legal profession about the protections in the Bill relating to material which attracts legal privilege, and in response to those concerns the Government propose a number of amendments.
We have already discussed the amendment to the privacy clause which makes it clear that a public authority must consider, when seeking a warrant or authorisation, whether additional protections apply because particularly sensitive material is to be obtained, including that which attracts legal privilege. This sets the context for the additional protections which are set out in subsequent parts of the Bill. It puts beyond doubt the importance of legal privilege. It makes it clear that public authorities must be mindful of the particular sensitivity of material which attracts privilege and must apply the additional protections provided for in the Bill.
The next set of amendments provided for in this group amend Clauses 27 and 107, which set out the protections for items subject to legal privilege in the targeted interception and targeted equipment interference provisions. Amendments 99 and 132 make it clear that it will not be possible to target legally privileged material solely on the grounds that is in the interests of the economic well-being of the UK. Amendments 100 and 133 define the exceptional and compelling test that applies when the intention is to obtain legally privileged material. The Bill is currently silent on this test, and detail as to what it means in practice has been set out in the draft code of practice.
Baroness Hayter of Kentish Town (Lab)
Like other noble Lords, I thank the Minister and the Bill team for the detailed discussions—perhaps negotiations is a better word—that they have had not only with us but with other interested parties. We have sought to balance our strong desire to protect clients’ confidentiality—their ability to speak openly and honestly with their lawyer, safe in the knowledge that information will go no further —with the need to safeguard the security of citizens and free them from the threat of terrorism or other risks to life. It would be wonderful if there were a nice, absolute and clear division between those two objectives but, sadly, in the real world there seldom is.
The Bill as drafted had not got the balance right. It was tipping towards the state’s ability to access or use legally privileged information. Since then, as the Minister outlined, the amendments to Clause 2, an overriding clause which should circumvent all the powers in the Bill, will significantly safeguard privileged material. It is not an absolute, but we acknowledge movement here and in other amendments, such as the public interest test needed before approving a warrant. It would require both the Secretary of State and a judicial commissioner to be satisfied that the public interest in obtaining the information outweighed that long-standing public interest in maintaining the confidentiality of legally privileged communications, but also, importantly, that there were no other reasonable means of obtaining the required information.
Similarly, we welcome Amendment 25, by which, when a warrant is requested to prevent or detect serious crime, the exceptional compelling circumstances have to relate to national security or preventing death or significant injury, and do not, as with some of the other powers, include being in the interests of the UK’s economic well-being. We are also pleased that the commissioner would have to be informed when any privileged material is retained by an agency and note that, as has just been mentioned, it can be ordered to be destroyed or for conditions to be imposed on its disclosure.
We are, however, sympathetic to the desire of the noble and learned Lord, Lord Mackay of Clashfern—I cannot believe he really called himself less luminous—to allow the commissioner to differentiate between advice and, for example, the time when a phone call was made, which could be incredibly important but irrelevant to the content of the phone call. If there is a way to enable the commissioner to differentiate in that way, we hope that the Government will respond to that positively.
Finally, with regard to the so-called inequity exception, we note that any application for a warrant under this provision would have to set out the grounds for believing that communications are being made with the intention of furthering a crime, and we welcome that.
We are mindful that representatives of lawyers—speaking on behalf of their clients, because it is their interests that we are discussing—feel that the Government have not gone far enough to meet their concern. We acknowledge that, on paper, an enormous amount of progress has been made. Our concern is whether the resources, culture and mindset of the IPC will allow for the scrutiny and challenge that the words now on paper will require. I am reassured by the fact that the judicial commissioners are not just lawyers but very experienced and senior ones, so they will have a background of understanding the legal profession’s fears and long-standing views about this matter. Perhaps, when replying, the Minister, in addition to responding to the wider points made, can give an assurance that the commissioner and judicial commissioners will be appointed with a view to guaranteeing their complete independence and with sufficient resources to be able to look at these significant and demanding issues with due care and attention.
Lord Keen of Elie
My Lords, I am obliged to noble Lords. I begin by looking at Amendments 27 and 88, which seek to insert the word “clearly” in the public interest test. On this point I concur with the observations of the noble Lord, Lord Carlile of Berriew, that there is a danger that this would simply muddy the waters and not clarify.
The test as set out in the government amendment is straightforward. The public interest in obtaining the information sought either outweighs the public interest in maintaining the confidentiality of privilege or it does not. If the word “clearly” were inserted, that certainty would be lost. We would have to try to define what we mean by “clearly”. Logic suggests that it means that one public interest test should outweigh the other by a certain amount, as indicated by the noble Baroness, Lady Hamwee, but it is not apparent what that amount would be. This would undoubtedly lead to confusion and uncertainty. Given that such a warrant can be sought only in exceptional and compelling circumstances, where national security or life and limb are at risk, confusion and uncertainty are one thing that we cannot afford.
The government amendments set out in detail what is intended by “exceptional and compelling”. The test is explicit on the face of the Bill and it is one that works. We are also introducing a requirement for the codes to include additional information about when circumstances are to be considered exceptional and compelling, and requiring the Investigatory Powers Commissioner to keep that language under review. It is in these circumstances that I invite the noble Baroness not to press her amendments.
The second set of amendments in this group—Amendments 56, 57, 192 and 193—seek to change the power of the Investigatory Powers Commissioner to determine what happens to legally privileged material when it has been obtained by an agency and the agency wishes to retain it. First, they would provide that the commissioner has the power to impose conditions on the use of the item as well as its disclosure. Secondly, they would also require the commissioner to direct that any privileged material that has been obtained must be destroyed unless there are exceptional and compelling circumstances that justify its retention. These amendments raise important issues in respect of legally privileged material that is inadvertently obtained and where the agency wishes to retain it. I would like to reflect further on our consideration of these points today and to return to this issue at Third Reading.
Amendment 107 deals with communications data and seeks to provide for judicial approval of authorisations for the communications data of a person who is or is likely to be a practising legal professional. It seeks to reflect the protections provided in Part 3 of the Bill for the identity of a journalistic source, but in practice this amendment goes much further by attaching the protections to the profession rather than to the sensitive information they manage. The debates in the House of Commons and at previous stages in this House have been clear that Parliament’s view is that protection should attach to the sensitive communication or to the function being carried out and should not simply apply to the person because they are a member of some profession. For example, there was consensus that protection should apply to the journalist’s communications with a source or the client’s communications with a lawyer. This amendment would go against that consensus by providing protection to a lawyer simply because he is a lawyer.
The Bill takes a reasoned and balanced approach. It applies additional protections where appropriate; provides for judicial authorisation of the most intrusive powers and for the use of less intrusive powers in the most sensitive circumstances; and provides a powerful and robust oversight regime to ensure that powers cannot be misused. The protections provided are specific to each power under the Bill, applying protection which is appropriate to the level of intrusion represented by each power. The draft Communications Data Code of Practice sets out the additional considerations that must be taken into account when any data relate to a member of a profession which routinely holds items subject to legal provision. Indeed, Schedule 7 to the Bill requires that the code shall include such detail. In addition, the current amendment to Clause 2 puts beyond doubt the importance of taking particular care in relation to sensitive information, such as items subject to legal privilege.
Our debate has already shown the importance that the Government place on the protection of legally privileged material, but I would suggest that it is not appropriate to introduce these additional protections within the context of authorisations for communications data. I invite the noble Baroness not to press Amendment 107.
Amendment 55A, tabled by the noble and learned Lord, Lord Mackay of Clashfern, seeks to amend government Amendment 55. This amendment would require the Investigatory Powers Commissioner to direct that any material obtained that is subject to legal privilege must be destroyed and allow the agency to retain only material that is incidental to that which is privileged.
I have already indicated in response to Amendment 57, proposed by the noble Baroness, Lady Hamwee, that I am minded to look again at whether there is more we might provide on the face of the Bill regarding the test that the commissioner should apply when making a decision about whether material can be retained. However, I would respectfully suggest that what the noble and learned Lord proposes with this amendment is not appropriate in the circumstances. It is the case that the vital intelligence that an agency may require could intrude not only on incidental material in a legally privileged communication but on the legally privileged communication in general.
I take up the example which the noble and learned Lord gave of the individual communicating with a lawyer and asking, “Can I be extradited from Greece?”. One might say, in a very straightforward fashion, that the relevant intelligence there is Greece, not that he may or may not be extradited. But what if the communication goes like this: “Can I be extradited from Greece or Albania?”, and the answer is, “You can be extradited from Greece but you cannot be extradited from Albania”. Just giving them Greece and Albania will not assist the intelligence services very much. On the other hand, the legally privileged information that he can be extradited from Greece but cannot be extradited from Albania might lead the reasonable intelligence officer to infer that the individual was more likely to be found in Albania than in Greece. It is in those circumstances that I suggest that one cannot easily divide between the two. As I have indicated, we are conscious that in these areas we can look again to see whether we can strengthen these matters. At this stage I would invite the noble and learned Lord not to press his amendment.
Lord Mackay of Clashfern
My Lords, I am extremely happy that the noble and learned Lord should look at this matter further. To take his example on Greece and Albania, I think the correct way to deal with that would be to say that it was an inference from the legal advice that he might be going to Albania and you could separate that out from the advice itself as a matter of edit, allowing for inferences from the nature of the arrangement. I think that a little bit of, shall I say, creative editing would make this possible. I am very keen to conserve the idea that legal professional privilege is absolute—that is the purpose of my amendment. I believe that with a bit of ingenuity the Government could devise a formula that would allow that to happen. In the meantime, I am happy not to press my amendment on the basis that it will be considered by the Government, and if necessary, I can return to it at Third Reading.
Lord Keen of Elie
“( ) In deciding whether to issue the warrant, the person to whom the application is made must have regard to the public interest in the confidentiality of items subject to legal privilege.”
Lord Keen of Elie
“( ) For the purposes of subsection (3)(a), there cannot be exceptional and compelling circumstances that make it necessary to authorise or require the interception, or the selection for examination, of items subject to legal privilege unless—(a) the public interest in obtaining the information that would be obtained by the warrant outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) in the case of a warrant considered necessary as mentioned in section 20(2)(b) or (3) or (as the case may be) 21(4), obtaining the information is necessary for the purpose of preventing death or significant injury.”
Baroness Hayter of Kentish Town
My Lords, I was about to congratulate the noble Lord, Lord Butler, on his excellent drafting of the amendments but he has slightly given away that it was not all done by his own fair hand. However, if the look on the Minister’s face is indicating that the Government might accept the amendments, we are delighted that the noble Lord’s influence from this House seems to be keeping pace with the influence that he had in his previous occupation. We are very content to support the amendments.
Lord Keen of Elie
My Lords, we welcome the chance to revisit this important issue, which was debated in Committee.
In putting beyond doubt that deliberate wrongdoing in relation to the bulk powers will be subject to clear, criminal sanction, we accept that these amendments will provide clarity on a crucial issue. We also believe that they have been drafted in such a way that, rightly, they would not criminalise honest, well-intentioned mistakes by the staff of our security and intelligence agencies, who do so much to keep us all safe. As such, we believe they strike the right balance and are to be welcomed. Therefore, we are happy to accept the amendments.
Lord Keen of Elie
(a) a member of the panel of the inquiry,(b) a person appointed as legal adviser to the inquiry,(c) a person who is a relevant party to the proceedings,(d) a person representing such a person for the purposes of the proceedings, or(e) a person performing functions necessary for the proper functioning of the proceedings.”
Lord Keen of Elie
My Lords, I shall now introduce a number of government amendments concerning the disclosure of information in relation to warrants.
Amendments 60 and 61 clarify those persons who may be present during restricted proceedings of an inquiry, as provided for under the Inquiries Act 2005, when intercept material is disclosed or examined. The proposed changes make it clear that intercept material can be disclosed in restricted proceedings only if restrictions are in place to prohibit attendance by anyone other than those individuals listed in Amendment 61.
I move on to Amendment 62. Clause 54 imposes a duty not to make unauthorised disclosures in relation to warrants issued under Part 2 of the Bill or Chapter 1 of Part 1 of the Regulation of Investigatory Powers Act 2000. Clause 55 sets out the circumstances in which such a disclosure is permitted. This amendment corrects a minor error in relation to Clause 55, which would allow a person to whom a mutual assistance warrant is or was addressed to authorise a disclosure of material in relation to the warrant if it was in accordance with a statutory purpose. The person referred to here would be a competent authority outside the United Kingdom, such as a foreign law enforcement agency. We do not wish to allow for such a disclosure and the amendment simply removes the ability of a person to whom a mutual assistance warrant is or was addressed to authorise a disclosure in relation to that warrant.
Amendments 63 and 93 do not change the meaning of Clauses 55 and 125 but simply clarify the excepted disclosure provisions in the Bill. This minor change makes it clear that a disclosure of information made by a legal adviser in relation to a warrant is not an “excepted disclosure” where the intention is to further a criminal purpose.
Amendments 64 and 94 relate to Clauses 55 and 125, which provide for certain disclosures to be made in relation to warrants. These amendments propose changes to the regulation-making power by which the Secretary of State may provide for permitted disclosures of statistics in relation to warrants.
These changes will permit communications service providers to publish greater statistical detail about the warrants to which they have given effect. The regulations may, for example, permit companies to publish not only data regarding the number of warrants to which they have given effect but details relating to the number of customer accounts that are subject to warrants issued under the Bill. This demonstrates the Government’s commitment to ensuring that, in addition to improving the safeguards around the use of investigatory powers, we are also increasing transparency by providing for more information to be made available to the public on the number of times these powers have been used. Accordingly, I invite noble Lords to support these government amendments, technical as they are.
Investigatory Powers Bill
Lord Keen of Elie Excerpts(7 years, 7 months ago)
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Lord Beith (LD)
My Lords, my noble friend has very helpfully referred to the qualification of economic well-being as a justification by reference to national security and he rightly probed why it appears in that form. It gave me some satisfaction, in a sense, that it was qualified in this way because, in my years on the Intelligence and Security Committee, I occasionally thought that the concept of economic well-being was capable of extraordinarily wide interpretation. If it was being interpreted very widely in order to support actions which might in some way touch upon economic well-being, it is appropriate that it should be qualified if the powers engaged are sufficiently wide as potentially to affect the rights and liberties of other people. In this legislation we are talking about powers which can impinge upon the lives and liberties of other people unintentionally or not as part of the purpose but as a necessary consequence of being able to use things such as bulk datasets or equipment interference. Therefore, I hope that the reason that economic well-being is qualified by reference to national security is a recognition that some of the powers given in this Bill require particularly stringent qualification to be permissive and used. If that is so, I welcome it.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I am obliged to the noble Lord, Lord Paddick, for making it clear that these are essentially probing amendments and I respond to them in that light. These amendments relate to the issuing, approval and modification of warrants under Parts 6 and 7 of the Bill.
Amendments 194J, 201B and 210B would remove from the Bill an important safeguard which requires that a bulk interception, acquisition or equipment interference warrant may be issued only if doing so is in the interest of national security. The Bill provides for a warrant under Part 6 to be issued where it is necessary on three statutory grounds: in the interests of national security; for the prevention and detection of serious crime; or in the interests of the economic well-being of the United Kingdom where those interests are also relevant to national security.
Clause 129(1)(b)(ii), Clause 146(1)(a)(ii) and Clause 164(1)(b)(ii), which these amendments seek to remove, ensure that one of those statutory grounds must always be national security. This is clearly an important safeguard which recognises the particular sensitivity of bulk powers and therefore limits their use to the most tightly drawn circumstances. In other words, the Bill says that a bulk warrant provided for in Part 6 of the Bill must have,
“in the interests of national security”,
as one of the statutory purposes to authorise collection. However, collection can also be authorised to prevent serious crime and to protect the economic well-being of the United Kingdom in addition to being authorised to protect national security.
The inclusion of the additional statutory grounds relating to serious crime and economic well-being remains vital. There will be circumstances where it is necessary and proportionate to select for examination data collected under a bulk warrant in order to, for example, prevent and detect serious crime, such as to detect and disrupt child sexual exploitation. However, the Bill ensures that the initial collection of data could be authorised only if doing so is necessary to protect national security, albeit that it may be necessary for one of the other two purposes that I have already described. In other words, there is a relationship between the statutory requirements for the bulk warrant and the operational purposes which will be specified in the same warrant application, some of which may relate to the prevention of serious crime or economic interest.
On that last point of economic interest, it has been asked how that can be distinguished from national security. In a sense, it is a matter of emphasis at the end of the day. The ISC looked at this in detail, and at the need to retain it as a statutory purpose in its own right. It took extensive evidence from the agencies and, indeed, from the Foreign Secretary. I believe that Dominic Grieve was the chair at that time. He made it clear during Report in the Commons that the ISC had been persuaded that there remained a need for safeguarding the UK’s economic well-being to continue to exist as a statutory purpose for the use of the investigatory powers in the Bill in their own right. Therefore, I accept that it is linked to national security but it is a matter of underlining the need to have in mind the cases in which economic well-being will be the prevailing factor.
Lord King of Bridgwater
I recall that with the noble Lord, Lord Beith, we went round this course a number of times in the ISC trying to work out where the economic well-being issue could be distinguished from national security. Will my noble and learned friend give a few illustrations now or at a later stage of the Bill to show exactly why this is the case? I think we were persuaded on this. My noble and learned friend said that the current ISC and the current chairman are persuaded. However, will he illustrate why they were persuaded?
Lord Keen of Elie
If I had those illustrations to hand, I would, of course, deliver them this very moment. I regret that I do not have them to hand. However, I will undertake to consider the illustrations that were given previously and write to the noble Lord. If it is necessary, I will elaborate on the examples already given by giving further examples. However, I regret that I am not in a position to cite those earlier examples.
I underline that the reference to national security in the context of the clauses to which I referred—that is, Clauses 129, 146 and 164—operates as an important safeguard. That is what has to be emphasised. In these circumstances I invite the noble Lord, Lord Paddick, not to press these amendments.
I turn to bulk personal datasets and health records and Amendment 223B. This amendment would limit the circumstances in which the intelligence agencies can retain and examine a bulk personal dataset which contains health records under a specific BPD warrant. The Bill already requires the Secretary of State and a judicial commissioner to consider whether the retention and examination of a bulk personal dataset is necessary and proportionate for certain defined operational purposes. Following consideration in the other place, the Bill was amended, limiting the test for granting a warrant for the retention and examination of a bulk personal dataset containing health records to cases where there are “exceptional and compelling” circumstances. These are already extremely high tests.
Amendment 223B would limit the Bill even further so that retention and examination is permitted only in exceptional and compelling circumstances related to national security. By their very nature, exceptional and compelling circumstances are very rare. Restricting the use of such datasets to circumstances where national security concerns are engaged would rule out their use for any other statutory purpose, including the prevention and detection of serious and organised crime. If we were to agree to this amendment, we would be signalling, in effect, that in no circumstances do we believe that it could ever be appropriate that such data should be used for serious and organised crime investigations even when the Secretary of State and a judicial commissioner consider this is necessary and proportionate and that there are exceptional and compelling circumstances. We do not consider that this is appropriate. It is long-standing government policy not to comment on intelligence matters. However, as the then Security Minister explained in the other place, in that specific instance only he was willing to confirm that the security and intelligence agencies did not hold a bulk personal dataset of medical records, which illustrates that there would need to be exceptional circumstances for an agency to do so.
However, the Minister and the Solicitor-General rightly emphasised that we would not want to rule out the possibility of there ever being such a scenario. They gave a hypothetical example in which a group of terrorists are involved in an explosion and sustain burns. Medical evidence about where they attended—the fact that they had attended a local A&E, for example—could be relevant to that particular operation and provide the only lead to find the individuals concerned. The same circumstances could arise if criminals were similarly injured in an explosion at, for example, an illegal drugs laboratory. This would not be a matter of national security but would relate to the prevention and detection of serious crime. I therefore emphasise that no Secretary of State or judicial commissioner, who would both have to approve a specific BPD warrant to retain medical records, would underestimate the seriousness of their duty in this regard. “Exceptional and compelling” is a high test to be met; restricting this further is not regarded as necessary. Therefore, again I invite the noble Lord to withdraw this amendment.
Lord Paddick
I am grateful to the noble and learned Lord for his explanations. On Amendments 194J, 201B and 210B, I accept what he said. I am grateful for the intervention of the noble Lord, Lord King of Bridgwater, and I look forward to the illustrations. While the Minister has his artistic streak going, perhaps he could also provide an example with regard to some of the other amendments, where, again, an illustration would be helpful.
Lord Keen of Elie
That plea to my artistic streak would require a somewhat abstract response, so perhaps the noble Lord could be a little more specific.
Lord Paddick
Yes, for example, with regard to the health records in Amendment 223B, I did not find the example of criminals engaged in manufacturing drugs an exceptional and compelling circumstance. Perhaps there is a better example than that. The absolutely intrusive nature of health records and the acknowledgement of that by way of the exceptional notification that the intelligence services do not hold any bulk personal datasets of health records tend to reinforce the argument that access to them should be restricted to national security grounds. I would be grateful if a more compelling example could be thought of, although obviously not at the moment.
Lord Keen of Elie
I will be quite content to formulate and intimate a more compelling example.
Lord Paddick
I am grateful. On Amendment 194L and a warrant issued only for the purpose of gathering evidence for use in legal proceedings, I will have to read carefully what the Minister said, as I came to completely the opposite conclusion to the one he gave. However, at this time I beg leave to withdraw the amendment.
Lord Paddick
My Lords, Amendment 194M stands in my name and that of my noble friend Lady Hamwee. I shall also speak to our Amendment 194N in this group.
Clause 130 relates to the additional requirements in respect of warrants affecting overseas operators giving assistance to UK intelligence agencies to enable bulk interception. Subsection (3) lists matters that the Secretary of State must take into account before issuing a warrant that requires an overseas operator to give assistance. We believe that an important omission to this list is,
“the domestic law of the operator’s place of business”—
that is, that the Secretary of State should not require overseas operators to break the law in the country where the request for assistance is being made.
As far as Amendment 194N is concerned, Clause 131 refers to the approval of bulk interception warrants by judicial commissioners. Subsection (1) states that a judicial commissioner must review the Secretary of State’s conclusions as to the granting of the warrant. Our amendment suggests that this should go further and that both the Secretary of State’s reasoning and their conclusions should be considered.
In previous sessions of this Committee, we heard the view that the judiciary should not make decisions on the issuing of warrants—that is for politicians to decide—but simply review the decisions. But if the judicial commissioner has to decide whether to “approve a decision” and indeed decides not to approve a decision of the Secretary of State, surely the judicial commissioner has made a decision on the issuing of a warrant. Surely a judicial commissioner should review the reasoning behind the Secretary of State’s decision and not simply the conclusion. Without knowing the reasons why the Secretary of State came to their conclusion, how can a judicial commissioner decide whether the conclusion is valid? I beg to move.
Lord Keen of Elie
My Lords, these amendments relate to a judicial commissioner’s consideration of a bulk warrant that is to be served on an overseas provider and what the commissioner is required to take into account when considering the Secretary of State’s decision to issue a bulk warrant. There is also a government amendment in this group which is technical in nature, and I shall address that in a moment.
Amendment 194M seeks to insert a requirement that, where an overseas telecommunications operator is likely to be required to provide assistance in giving effect to a bulk interception warrant, the Secretary of State must—before the warrant is issued—take into account the domestic law of the operator’s place of business.
I suggest that this amendment is not necessary. The Bill already provides, at Clause 139(5), that Clause 41, which deals with the duty of operators to assist with implementation, applies in relation to a bulk interception warrant in the same way as it applies to a targeted warrant. Clause 41 makes it absolutely clear that a telecommunications operator may be required only to take “reasonably practicable” steps to give effect to a warrant. It also makes clear, at subsection (5), that for an overseas operator consideration must be given to the law of the relevant country and the extent to which it is reasonably practicable to give effect to the warrant without breaching it. So I suggest that this amendment is not necessary and, in these circumstances, I invite the noble Lord to withdraw it.
Amendment 194N seeks to alter the test that a judicial commissioner applies when considering whether to approve a decision to issue a bulk interception warrant. This topic has been the subject of intense scrutiny by three committees, the other House and, in the context of the targeted powers within the Bill, this House. As a result of that debate, the Government have already made considerable amendments to the Bill.
This amendment would require the judicial commissioner to consider the reasons given for the decision to issue a bulk interception warrant. The amendment is, I think, based on a misunderstanding of how warrants operate. The Secretary of State will receive a detailed application setting out the necessity and proportionality considerations. If he or she agrees, the Secretary of State will issue the warrant. He or she does not have to give reasons for that decision beyond confirming that he or she personally considers that the warrant is necessary and proportionate.
The judicial commissioner will then review the Secretary of State’s decision based on the evidence that was provided to the Secretary of State in the application. If the commissioner thinks that the evidence in the application is not a sufficient basis for the decision that has been made, he or she will refuse to approve the decision. In these circumstances, there are no reasons per se to be reviewed by the judicial commissioner. Given that, and given the progress that has already been made on this issue, I invite the noble Lord not to press this amendment.
Lord Paddick
My Lords, I apologise; it is me again. In moving Amendment 201ZD in my name and that of my noble friend Lady Hamwee I shall speak to our Amendments 210ZD, 217D and 231ZC.
Clause 137 is about the approval of major modifications made in urgent cases to bulk interception warrants. These urgent requests for modification will be made by the Secretary of State alone. The judicial commissioner must approve any urgent change within a period ending with the fifth working day after the day on which the modification is made. Elsewhere in the Bill, the relevant period within which an urgent request for a warrant that has, for example, been granted by the Secretary of State alone and has then to be approved by a judicial commissioner—for example, in the case of the approval of interception warrants in urgent cases under Clause 24(3)—is the period ending with the third working day after the day on which the warrant was issued.
Our Amendment 201ZD would restore consistency to post-event approval of decisions by the Secretary of State in urgent cases by changing the relevant period within which judicial commissioner approval is needed in urgent cases of modification from five days to three days. Our Amendment 210ZD makes the same point relating to the urgent modification of bulk acquisition warrants in Clause 153; Amendment 217D to the urgent modification of bulk equipment interference warrants in Clause 173; and Amendment 231ZC to the urgent modification of bulk personal dataset warrants in Clause 196.
Will the Minister explain why, in the case of urgent major modifications of bulk interception warrants, the relevant period for judicial commissioner approval is five days and everywhere else in the Bill approval of urgent decisions is three days? I beg to move.
Lord Keen of Elie
My Lords, while we must ensure that judicial commissioners have sufficient time to scrutinise effectively the decisions of the Secretary of State, I am sympathetic to these amendments. Indeed, the Government have already amended the Bill such that when an urgent targeted warrant is issued the judicial commissioner must approve the decision to issue it within three working days, as opposed to five. On this basis, I am happy to commit to take away the amendment for further consideration and accordingly I invite the noble Lord to withdraw it.
Lord Paddick
I am very grateful to the noble and learned Lord for his encouraging words and on that basis I beg leave to withdraw the amendment.
Lord Paddick
I want briefly to add our support for the amendments tabled by the noble Lord, Lord Butler of Brockwell, and for his compelling arguments. I have never previously had contact with the security services but, in preparation for this Bill, I visited various places where they operate, and I am convinced that it is not simply a question of the high esteem in which James Bond is held: the perceived integrity of the people who work in the security services is a function of reality. These offences are of far more benefit to the public in reassuring them that, in the extraordinary circumstance that they were committed, such offences do indeed exist, rather than their being demonstrably necessary based on experience because the security services operate in this criminal way.
However, as the noble Lord, Lord Butler of Brockwell, has said, it is something of an anomaly that there is no serious criminal sanction for an abuse of the bulk powers provided by the Bill, yet there are significant criminal sanctions in relation to all the other powers. On that basis, I very much support these amendments.
Lord Keen of Elie
My Lords, I am conscious of the strength of feeling that has been expressed about this matter, but let me make it clear that we do not accept that there is what was termed “a gap” in the criminal sanctions with respect to bulk powers. This matter was discussed during earlier Committee sittings, as the noble Lord, Lord Butler of Brockwell, observed, under reference to Amendment 15, which proposed a new offence of unlawful use of investigatory powers. I understand the development that has taken place and the context of the amendments that have now been spoken to. On that earlier occasion, I referred to the civil penalties and criminal offences that apply in respect of the misuse of the powers in the Bill. In particular, I pointed out that a whole series of statutory offences is listed under Clause 1. But over and above that, it is important to bear in mind the availability of the offence of misconduct in public office, which is also referred to. I underline that because that offence would apply to instances of misuse of bulk powers in appropriate circumstances, and would certainly embrace circumstances in which there was a knowing or reckless misuse of such powers.
I also note in passing that, only two days ago, the Law Commission issued a consultation document entitled Reforming Misconduct in Public Office so that the matter could go out for further consideration. The Law Commission highlighted that the problem is that, often, there are overlapping offences which obscure the use of the offence of misconduct in public office. I rather fear that the introduction of a further statutory offence would simply create a further overlap with regard to such offences. We are at an early stage. The Law Commission has only just introduced that consultation document, but we will take account of it in this context. Although I quite understand the point that was raised by the noble Lord, Lord Butler, and indeed the ISC, in this context, we consider that misconduct in public office is available to deal with the instances that have been referred to.
Before the summer, in response to Amendment 15, we referred to the “inadvertent operational impact” that the creation of further statutory offences could have. The officers working within our intelligence agencies are entirely committed to the mission of keeping the country safe. They are professional and ethical in the way they conduct their work. We recognise the concerns raised about the potential misuse of investigatory powers but, as I say, the creation of new offences may unnecessarily inhibit agency staff and limit their ability to operate with confidence. We do not disagree that intelligence officers who are exercising these most sensitive and, indeed, intrusive powers should consider their actions carefully before using them, but we have seen no evidence that the dedicated men and women of our security and intelligence agencies give such matters anything less than the most careful consideration.
While deliberate misuse of these data can already incur criminal liability—indeed, we suggest that reckless misuse would be sufficient—the creation of a new offence would send a powerful and potentially damaging message to the men and women of our intelligence services. It may be taken to imply that more is required of them than is already the case and that innocent mistakes will in future result in criminal prosecution; for example, if they are construed as the product of reckless behaviour. I appreciate that it is not the noble Lord’s intention that this should occur but we must consider not just the letter of the law but what it will be taken to mean by those on the front line. There is a real risk that this amendment, if accepted, would suggest that they are not trusted to do their jobs, and that it could foster a culture of risk aversion in the agencies at a time when they are dealing with complex and evolving threats. That is certainly the concern expressed by the heads of the intelligence agencies, which I know they have communicated directly to members of the Intelligence and Security Committee.
The Government are clear that if anyone in a public authority were to act contrary to their obligations under the Bill, the matter would be taken extremely seriously. The current commissioners already ensure that they investigate and report publicly on the very infrequent cases of errors that involve serious misuse. These matters are brought into the public domain. In appropriate cases disciplinary action may be taken, up to and including dismissal, or civil or criminal liability incurred. The extent of that criminal liability will be determined by the prosecution deciding what form of offence should be prosecuted, at what level and, indeed, at what level of court for the purposes of penalty. Although misuse is exceedingly rare, intelligence agency staff are conscious of their obligations; indeed, from time to time they have been dismissed for misusing systems.
When these points are considered together, I hope noble Lords will agree that this puts beyond doubt the severe penalties that would apply in the event of deliberate wrongdoing by a member of a public authority—or, indeed, reckless behaviour. We therefore suggest that new criminal offences are unnecessary and potentially confusing, and, on the face of it, would adversely affect the operation of the agencies. In these circumstances, I invite the noble Lord to withdraw his amendment.
Lord Paddick
If the Government are concerned about overlapping criminal offences, particularly the overlap with misconduct in a public office, why in Clause 56 have they created a new offence of making unauthorised disclosures? That seems to completely contradict the argument that the Minister has just offered the Committee.
Lord Keen of Elie
I do not for a moment accept that it contradicts the argument. The objective is to ensure that we minimise any overlap in the context of such criminal offences.
The Marquess of Lothian
In the interests of public confidence, can my noble and learned friend give an indication of what sorts of penalties there would be for the offence of misconduct in public office? It is important that the public know this is being taken seriously.
Lord Keen of Elie
The extent of the penalty would depend on the level at which the particular offence was prosecuted. I do not think I can give an absolute answer to that but I would be content to write to the noble Lord to set out the scope for such a prosecution.
Lord Paddick
My Lords, Amendment 203A is in my name and that of my noble friend Lady Hamwee. I shall also speak to Amendments 204A, 204B, 210ZE and 210ZF, which are in this group.
Our Amendment 203A seeks to put into the Bill that a bulk acquisition warrant will not include obtaining third-party data not already in the possession of the operator. We have debated a similar point before and the Minister addressed third-party data in his letter to the noble Lord, Lord Rosser, on 27 July this year. However, can the Minister elaborate on the position of third-party data in relation to bulk acquisition?
Amendment 204A seeks to get it on the record that Clause 146(7), by allowing the warrant to cover,
“data whether or not in existence at the time of the issuing of the warrant”,
does not allow for speculative surveillance without suspicion.
Amendment 204B would put into the Bill that,
“A bulk acquisition warrant may not require data which relates to or includes internet connection records”.
This was touched on in our opening debate this afternoon on the Anderson review. In footnote 85 on page 33 of his report, Anderson states:
“A ‘Bulk Communications Data’ factsheet published with the draft Bill on 4 November 2015 stated ‘The data does not include internet connection records …’. I am told however that this is no more than a statement of present practice and intention: neither the Bill nor the draft Code of Practice rules out the future use of the bulk acquisition power in relation to ICRs”.
The Committee will recall that we on these Benches oppose the storage of the internet connection records of every man, woman and child in the UK for 12 months, whether suspected of an offence or not, by internet service providers as required by the previous provisions of the Bill. We believe this to be a disproportionate intrusion into privacy, for the reasons that I have already explained at length to the Committee. Law enforcement agencies would, however, be able to access such internet connection records only if someone was suspected of an offence. The Government have introduced additional safeguards in the Bill to specify what sorts of offences would warrant such intrusion, but without this amendment it is open to the Government in the future to allow law enforcement agencies to store and have access to internet connection records. We believe that this is two steps too far.
As far as Amendment 210ZE is concerned, Clause 157 refers to the “Duty of operators to assist with implementation” of bulk acquisition warrants. This amendment seeks to clarify that the person to whom the warrant is issued—the implementing authority—cannot be held liable for a breach of the warrant because of the actions of the operator.
Amendment 210ZF seeks to ensure that, under Clause 158, “Safeguards relating to the retention and disclosure of data”, if internet connection records were subsequently stored, no such record could be disclosed unless the individual concerned was suspected of having committed an offence. I beg to move.
Lord Keen of Elie
My Lords, I agree with the noble Lord’s intention in Amendment 204 to ensure that communications data can be acquired in bulk and analysed in real time. Indeed, the Bill already permits this. I draw attention to Clause 146(5) and 146(6), which provide for such a scenario as he suggests in this amendment. These subsections specify the conduct which must be described in the warrant and any conduct that it is necessary to undertake to do what the warrant expressly requires. If it was therefore necessary to obtain bulk communications data in real time, these provisions would allow it.
Baroness Hamwee
My Lords, I think that the noble and learned Lord is speaking to Amendment 204, which has not in fact been spoken to.
Lord Keen of Elie
I had understood that the noble Lord, Lord Paddick, also referred to Amendment 204 but if he did not, I apologise.
I turn then to Amendment 203A, which seeks to exclude the ability for a bulk acquisition warrant to require a communication service provider to obtain third-party data where it is not already in its possession. I do believe that the noble Lord referred to that.
Lord Keen of Elie
It will be recalled that the issue of third-party data was discussed during the last Committee session before the Summer Recess, when my noble friend Lord Howe explained that it is absolutely right that where a communication service provider holds or is able to obtain communications data, whether in relation to its own services or those provided by a third party, the data should be available to be acquired under the Bill. Put simply, data that already exist and are held or can reasonably be obtained which could save a life, convict a criminal, prevent a terrorist attack or provide an alibi should not be put out of the reach of law enforcement. The point we would make clear is this: a bulk warrant can require a communication service provider to obtain and disclose third-party data only where it is necessary and proportionate to do so, and where approved by a judicial commissioner. The provider is required to comply with a request to provide communications data in bulk, including third-party data, only where it is reasonably practicable for it to do so. Given these safeguards, I suggest that any further restriction on obtaining third-party data would not be appropriate.
This is of course a separate matter from the retention of third-party data, where the Prime Minister gave a clear commitment when she was Home Secretary that we will not require a telecommunications operator to retain third-party data. We are working on provisions to address that matter in the Bill.
We understand that the purpose of Amendment 204A is to limit the bulk acquisition of communications data to those which are held by the communication service provider only on the day that a warrant is served. The noble Lord, Lord Paddick, indicates otherwise.
Lord Paddick
If I can assist the noble and learned Lord, Amendment 204A is to probe and seek reassurance on the record that this is not simply to allow speculative surveillance without suspicion. I accept that a warrant has to authorise the acquisition of an ongoing stream of content but this would just assure the Committee that it does not mean speculative surveillance without suspicion.
Lord Keen of Elie
I do not think that there is any suggestion that it would involve speculative surveillance without suspicion but, technically, we should not require the agencies to make repeated applications for a warrant in order to maintain their access to such material. I hope that reassures the noble Lord, and I shall therefore move on. Perhaps I had misunderstood the extent of the noble Lord’s amendment, but there would be an unnecessary workload on the agencies if they had repeatedly to apply for warrants in this context. However, I am sure that that was never the noble Lord’s intention.
Amendment 210ZE seeks to ensure that the authority implementing a bulk acquisition warrant cannot be liable for a breach of that warrant as a result of an act or omission by the communications service provider on which it has served the warrant. The Bill outlines errors that must be reported to the Investigatory Powers Commissioner, and the draft Bulk Acquisition Code of Practice provides additional detail on error reporting processes. The code draws distinctions between errors made by the requesting agency and those made by a communications service provider on which the warrant is served. We believe it is clear that anyone implementing a warrant is responsible for any error they, and they alone, make, and that they are not responsible for any error made by anyone else. Therefore this amendment is unnecessary.
Amendments 210ZF and 204B would add to the current list of reasons for which it may be necessary to disclose or copy communications data obtained under a bulk acquisition warrant. Such disclosure and copying must, of course, be kept to the minimum necessary for a limited number of purposes. The amendment adds, in the case of internet connection records, a requirement of necessity in respect of an individual having committed an offence.
In tabling amendment 210ZF, I understand the noble Lord is seeking to understand whether a bulk acquisition warrant could require a communications service provider to provide internet connection records in bulk. The Government have been clear that one of the aims of the Bill is to provide technology-neutral legislation—a point referred to earlier by my noble friend Lord Howe—to take into account future changes in the way that we communicate. While we have been clear that internet connection records are not currently acquired in bulk, it is of course worth being clear that current legislation would allow the agencies to acquire internet connection records in bulk, where necessary and proportionate to do so.
I can confirm to the Committee that the agencies do not currently acquire internet connection records in bulk and have no current intention to do so. It is, however, important to ensure that we do not legislate against the possibility of internet connection records being acquired in bulk, should the agencies make a case which demonstrates that this might be necessary and proportionate in the interests of national security in the future.
We strongly believe that it is right that the intelligence agencies have the power to acquire communications data in bulk. Indeed, David Anderson, in his recent review of the utility of the bulk powers within the Bill, said:
“Bulk acquisition has been demonstrated to be crucial in a variety of fields”,
and that,
“bulk acquisition has contributed significantly to the disruption of terrorist operations and, through that disruption, almost certainly the saving of lives”.
Clause 158, which this amendment seeks to alter, outlines the safeguards relating to the acquisition of communications data under a bulk warrant. Any application to obtain communications data in bulk is subject to the strongest of the safeguards in the Bill, which we have discussed at length in relation to other provisions. A warrant to acquire communications data in bulk must be both necessary and proportionate for the interests of national security, must specify the operational purposes, which are the only reasons the data can be selected for examination, and will be subject to the double lock of Secretary of State and judicial commissioner approval.
It is in this context and in the context of these very strong safeguards that we think it right, as is currently the case, that the bulk acquisition power should remain technologically neutral, with the safeguards applying equally to all types of communications data defined by the Bill.
As David Anderson recommends in his report, the Government will also keep the bulk acquisition power under review in order to ensure that it remains necessary and proportionate alongside any other mechanisms which might be developed, such as the request filter. Taking into account the fact that the agencies require such clear authorisation from both the Secretary of State and the judicial commissioner, should they ever consider it necessary and proportionate and in the interests of national security to proceed with such bulk acquisition, I suggest that this amendment is unnecessary and I invite the noble Lord to withdraw it.
Lord Paddick
I am grateful to the noble and learned Lord for his explanation. As far as Amendment 204B and the potential for bulk acquisition of internet connection records are concerned, it is, to us, a rather alarming prospect which I do not think has yet been raised in the public consciousness. It is absolutely certain that we will return to this issue on Report. At this stage, I beg leave to withdraw the amendment.
Investigatory Powers Bill
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Lord Paddick
My Lords, I rise to move Amendment 212A standing in my name and that of my noble friend Lady Hamwee. Clause 167 deals with the situation in which a judicial commissioner fails to approve a decision to issue a bulk interference warrant in urgent cases. When this happens, under Clause 167(2) the person to whom the warrant is addressed,
“must, so far as is reasonably practicable, secure that anything in the process of being done under the warrant stops as soon as possible”.
Our Amendment 212A adds a requirement that the actions taken to stop activity under the warrant are reported back to the judicial commissioner to confirm that his decision has been complied with. I beg to move.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, as the noble Lord, Lord Paddick, has indicated, Amendment 212A seeks to mandate that in the event that a bulk equipment interference warrant is issued in an urgent case and the judicial commissioner later refuses to approve the decision to issue the warrant, the relevant security and intelligence agency must report any activity carried out under that warrant and any steps being taken to stop the activity to the judicial commissioner.
This amendment is not necessary. Clause 167(4) grants the judicial commissioner the power to require representations where they have refused to approve the decision to issue a bulk equipment interference warrant which was issued urgently. Under this provision, security and intelligence agencies may be required to set out what material has been acquired under the warrant as well as other details of the interference, and it will be for the judicial commissioner to determine exactly what information they require to make their decisions on a case-by-case basis. This provision as drafted ensures that the commissioners will have all the necessary information to determine how material should be handled and if any further interference is required to stop the activity. Therefore there is a reporting function in order that the judicial commissioner can make the appropriate directions under Clause 167(3).
In these circumstances, I invite the noble Lord to withdraw the amendment.
Lord Paddick
I am grateful to the noble and learned Lord for that explanation. I will carefully consider his response and look at the Bill, but at this stage I beg leave to withdraw the amendment.
Lord Keen of Elie
My Lords, Clause 199 explains the process of, and sets the time limits for, the initial examination of a dataset. The noble Baroness, Lady Hamwee, has explained the purpose of Amendments 231ZD and 231ZC, and I am obliged to her for indicating that these are probing amendments. I make no point about the technicalities of the proposed amendment, and understand the underlying rationale for making these probing amendments.
Although there may be occasions when a security and intelligence agency knows exactly what it has received, that is clearly not always the case. To give a simple example, an agency may receive a USB stick that it believes contains files relating to an organisation engaged in terrorist activity. This might, or might not, be a bulk personal dataset, and needs to be subject to an initial examination to determine whether it is a bulk personal dataset. To be absolutely clear, this initial examination process can only establish what the data are: in particular, whether this is a bulk personal dataset or not, and whether there is a case for retaining it. They cannot be searched or selected for examination without a warrant, so delaying applying for a warrant is not a way for the intelligence agency to work round the system provided for in the Bill.
It is not in anyone’s interest to delay the process. The agency cannot start using the data until a warrant is issued, and the agencies will therefore want to get warrants in place as quickly as possible, particularly as there may be concerns about whether threats and opportunities will be missed by reason of any delay. More generally, the Bill places an obligation on the agency to apply for a warrant,
“as soon as reasonably practicable”,
meaning that if it is possible to apply for a warrant sooner than the deadline set out in Clause 199 the agency would do so. The time limit here is just what I would term the “hard stop” provision within the clause. Amendment 231ZD is therefore unnecessary and indeed, in a sense, unhelpful.
From the point where the intelligence agency believes a dataset created in the United Kingdom includes personal data, as the noble Baroness, Lady Hamwee, noted, it has three months to complete the initial examination and apply for a warrant to retain and, if necessary, select data for examination from the dataset. Amendment 231ZE seeks to reduce this period from three months to one month.
The Government do not think this is appropriate. The structure and format of some bulk personal datasets can be highly complex, even if created in the United Kingdom. In some cases, it can take considerable time to be confident that the structure is sufficiently understood. Only then can the intelligence agency accurately describe the information contained in the dataset and know whether it is necessary and proportionate for it to be retained. There may be other factors that require time to resolve, including, for example, technical difficulties such as formatting, compression and encryption. Indeed, there may be language issues: the dataset, even if created in the United Kingdom, may be in a foreign language. In addition to that, the size of the dataset can be a factor. Three months is therefore considered the appropriate time limit for this initial examination. However, I underline the point that this is an outer limit—this is the hard limit for that.
Again, I emphasise to the noble Baroness that this three-month time limit does not provide a way for the agencies somehow to circumvent the safeguards within the Bill. The dataset in question cannot be used for intelligence purposes until a specific BPD warrant is in place or until the provisions set out in chapter 6 of the draft code of practice, which relate to authorising retention and use of a dataset fitting within a class warrant, are met. In these circumstances, I invite the noble Baroness to withdraw the amendment.
Baroness Hamwee
I am grateful for that explanation. It has helped me to understand the process but it has also made me wonder whether in Clause 199(3) the term “belief” is the correct one. The way that the Minister has described it, it is more of a suspicion—I do not mean that in any negative way—or a concern. A “belief” suggests that there has been a thought process arriving at a conclusion. I do not expect him to respond to that now unless he wants to but I am left wondering, and he might want to look at this again, whether this wording quite describes the completely cogent explanation about the clause that we have just heard. For the moment, though, I beg leave to withdraw the amendment.
Lord Keen of Elie
““personal data” has the meaning given by section 182(2);”
Investigatory Powers Bill
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Lord Beith (LD)
My Lords, it is quite important that we get this right. As I think the noble Lord, Lord Murphy, will remember, one of the commissioners under the previous arrangements was found by the ISC to have been hopelessly inadequately provided with staff, to such an extent that there was a huge build-up of correspondence. That was some years ago and it took some effort by Members of our party as well as of his to ensure that that was quickly remedied.
I also have experience as a constituency Member of Parliament in dealing with an employee issue, the merits of which I will certainly not go into but which was not helped by its being unclear who the employer was. I am talking about somebody who was engaged in the office of one of the commissioners. So I am grateful to my noble friend for trying to make sure that we get this bit right.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I turn first to Amendment 194ZA, regarding the provision of funds to the Investigatory Powers Commissioner, and I note that the noble Baroness, Lady Hamwee, has referred to this as a probing amendment.
I entirely agree with what this amendment seeks to achieve. The Investigatory Powers Commissioner must be free to appoint whomever he or she thinks is right and proper and to arrange their office as they see fit. It is certainly true with the current independent commissioners that, although they receive their funding from the Secretary of State, they are free to employ whomever they think best suited for any role they have to fill.
It has always been the intention under the Bill that the commissioner should appoint whom they wish. However, I would not want to accept this amendment as drafted since it may preclude the Secretary of State providing non-monetary assistance to the IPC. I will consider further whether anything more should be done to put beyond doubt that the commissioner will have autonomy over the appointment of staff, but I hope I have made the intention absolutely clear in response to the request from the noble Baroness. On that basis, I invite her to withdraw the amendment.
On Amendment 194DA, it is certainly the case in practice that the president of the Investigatory Powers Tribunal is consulted before the budget allocated to the tribunal is settled. The tribunal then has sole responsibility for paying the salaries and expenses of the tribunal. This is a sensible way of doing things and ensures that the tribunal has sufficient funds to conduct its business. I see no reason for changing this practice.
Investigatory Powers Bill
Lord Keen of Elie Excerpts(7 years, 9 months ago)
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Lord Keen of Elie
“(za) section (Restrictions in relation to internet connection records) (restrictions in relation to internet connection records),”
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, we recognised during the passage of the Bill thus far that care must be applied to the acquisition of internet connection records—in particular, that they should not be acquired for trivial purposes. Their value to law enforcement has been widely recognised, and the Bill, as introduced, already restricts access to four specific purposes. In addition, local authorities cannot acquire them for any purposes.
However, in response to a suggestion from the shadow Home Secretary in the House of Commons, the Government committed to consider further restrictions which would provide greater reassurance that the powers to acquire internet connection records would only ever be used proportionately. These amendments therefore apply a threshold to the acquisition of internet connection records when the statutory purpose is for the prevention and detection of crime. This means that they will be able to be acquired only for offences that are sufficiently serious that an offender can be sentenced to at least six months’ imprisonment.
In implementing this threshold, however, it is important that internet connection records can continue to be used for certain offences which, for whatever reasons, carry a lower sentencing limit. I am sure that noble Lords will agree that internet connection records should be available for these offences. These are: the investigation of any offence where the sending of a communication is an integral part of the offence: for example, offences related to stalking, cyberbullying and harassment which can, if not investigated, quickly escalate to more serious offences; offences relating to breach of a person’s privacy, such as stealing personal data, which recognises the importance of protecting privacy in the digital age and the need to fully investigate any suspected breaches; offences committed by corporate bodies—for example, corporate manslaughter, where a penalty of imprisonment cannot apply; and any offence meeting the serious crime threshold in the Bill for the most intrusive powers, ensuring that these powers can be used to investigate offences involving the use of violence, conduct that results in substantial financial gain and conduct by a large number of people in pursuit of a common purpose.
A number of consequential amendments are made as a result of this amendment. The Government and law enforcement are clear about the value and importance of accessing internet connection records to prevent and detect crime, and to keep the public safe. That has been recognised during the passage of this Bill thus far, including by noble Lords at Second Reading. The amendments build significantly on the safeguards that the Bill already applies to the acquisition of communications data. They are based on the amendments proposed by the Opposition in the House of Commons and they will ensure public trust in the use of these vital powers. I beg to move.
Lord Paddick (LD)
My Lords, the restrictions on using internet connection records set out in these amendments are welcome. However, we intend to propose the removal of internet connection records from the definition of communications data that the Secretary of State can require a telecommunications operator to retain when we come to debate Clause 83. The intended effect of that amendment would be to make it impossible to obtain internet connection records unless they were retained by the telecommunications provider for its own business purposes. I will leave any further comment on internet connection records until we reach Amendment 156A to Clause 83.
Lord Rosser (Lab)
We welcome the spirit of the Government’s amendments, which, as the noble and learned Lord said, seek to fulfil the commitment the Government made during the passage of the Bill in the Commons to introduce a clear and appropriate threshold for accessing internet connection records. The concern was that access should not be available in connection with non-serious crime. The threshold for serious crime appears workable and appropriate.
We welcome, too, the fact that specific offences such as stalking and harassment have been addressed and can lead to access to ICRs. However, we have continuing concerns around the definition of “relevant crime”, which we feel is too broad and could still lead to the use of ICRs in connection with crimes that would not be regarded as serious. Last April, the then Home Secretary told the shadow Home Secretary that restricting ICRs to serious crime would: hamper the ability of the police to investigate online stalking and harassment; disrupt police investigations of online grooming or the sending of sexual communications to a child; reduce the ability to investigate online fraud; hinder the ability to identify and disrupt the sale and distribution of illegal material online, including illegal weapons, counterfeit medicines or illegal drugs; and prevent the police from progressing investigations where there may be a threat to life, but where it is unclear whether a crime is involved—for example, locating a missing or suicidal child—because many of these activities would not meet the serious crime threshold.
We do not disagree with the intention set out in that communication from the Home Secretary to the shadow Home Secretary, but if the Government have a list of specific offences or types of offences which they feel fall below the serious crime threshold but should not be subject to a restriction on access to ICRs, perhaps that is a matter that needs further discussion about what should be included on the list or what should be covered. We wish to see the wording in the government amendment tightened further. We would want to work with the Government on this while the Bill is progressing through its stages in this House. I hope that the Minister, on behalf of the Government, will feel able to indicate that he is willing to have further discussions on this and the wording of the amendment in the light of our concerns about the apparent broad nature of the definition of “relevant crime”.
Lord Keen of Elie
My Lords, I am obliged to the noble Lord. I welcome the suggestion that we are at least heading in the right direction with regard to these amendments. We would of course be open to further discussions on this topic so we can address more fully what is a relevant crime in this context. I will add that one has to bear in mind that these potentially intrusive orders will be made only where it is necessary and proportionate. That is the test that exists, but I welcome the opportunity for further discussion with noble Lords.
Lord Butler of Brockwell (CB)
My Lords, I find the amendment moved by the noble Lord, Lord Paddick, difficult to understand. He made the point that the filter arrangement makes the operations of the police easier, but it makes them easier by ensuring that they do not inspect communications data which are not relevant to their purpose. It therefore protects privacy rather than threatens it. The filter is governed by the requirements of the rest of the Bill. It will apply the tests of necessity, proportionality and the protection of privacy. It is a protection of privacy rather than a threat to it.
Lord Keen of Elie
My Lords, Clauses 63 to 65 provide that the Secretary of State may establish, maintain and operate filtering arrangements for communications data—the request filter—and detail the appropriate safeguards and restrictions around its use.
Public authorities currently need to receive all the communications data disclosed by communications service providers in response to specific requests so they can determine which specific pieces of communications data are relevant to their investigation. Public authorities will sometimes need to make complex queries. For example, they may need to ask multiple communications service providers for data to identify an unknown person who is suspected of having committed a crime at three different places at different times. Currently, public authorities might approach communications service providers for location data to identify the mobile phones used in those three locations at the relevant times in order to determine whether a particular phone and a particular individual are linked to the three offences. This means the public authority may acquire a significant amount of data relating to people who are not of interest.
The request filter will mean that when a police force makes such a request, it will see only the data it needs. Any irrelevant data will be deleted and not made available to the public authority. The filter acts as a safeguard, as the noble Lord observed a moment ago, protecting privacy by ensuring that public authorities see only the data they need.
The joint scrutiny committee on the draft Bill stated:
“We welcome the Government’s proposal to build and operate a Request Filter to reduce the amount of potentially intrusive data that is made available to applicants”.
It believed that the requirement upon law enforcement to state the operational purpose for accessing data through the filter and the oversight of the Investigatory Powers Commissioner will ensure appropriate use of the filter.
Clause 64 makes it clear that the request filter may be used to obtain, disclose or process communications data only if the relevant authorisation specifically authorises that use. The designated senior officer must consider that, in addition to the necessity and proportionality concerns provided for in Clause 58, what is being authorised in relation to the filtering arrangements is proportionate to what is sought to be achieved. It also provides that the relevant authorisation must record the designated senior officer’s decisions on the use of the request filter. I therefore take issue with the suggestion from the noble Lord, Lord Strasburger, that the request filter could somehow be used to permit fishing trips, as he termed them. The request filter cannot permit such expeditions. The filtering arrangements can operate only in response to a specific, necessary and proportionate authorisation for the acquisition of communications data. In other words, that request must already have gone through all the existing communications data safeguards, such as authorisation by a designated senior officer. Indeed, the operation of the filtering arrangements will be overseen by the Investigatory Powers Commissioner. Clause 64 makes it clear that the request filter may be used to obtain, disclose or process communications data only if the appropriate authorisations have been made.
Clause 65 provides that the Secretary of State must ensure the application of the appropriate restrictions on the request filter, maintain adequate security measures with regard to the request filter, put in place procedures to ensure its effective functioning and report to the Investigatory Powers Commissioner regarding its functioning on an annual basis, including immediately reporting any significant processing errors. This again underlines the point that the commissioner will be overseeing the operation of the filter.
Lord Rosser
My Lords, I shall be very brief. As has been said, the provisions of this Bill have been subject to considerable scrutiny. The heart of Amendment 156A is about the balance between privacy, security and safety. Inevitably there will be disagreements, which have been highlighted in this debate, about where an appropriate and proper balance lies.
On Amendment 147A, I have virtually no knowledge about the Advocate-General’s opinion, to which reference has been made. However, if we have that opinion, we would like to hear at some stage whether the Government think that it would have implications for any of the provisions and procedures in the Bill, were that opinion subsequently adopted.
Lord Keen of Elie
My Lords, Amendment 156A seeks to prevent the retention of internet connection records. The Committee will not be surprised that the Government cannot support such an amendment. We have been absolutely clear about the need for internet connection records. We addressed that when publishing the operational case for these powers.
The right reverend Prelate the Bishop of Chester referred to a model of pre-legislative scrutiny. The noble Lord, Lord Carlile, referred to the most scrutinised Bill ever seen. My noble friend Lord King alluded to the three reports we have had, and the noble Lord, Lord Murphy, spoke about the Joint Committee that he had chaired which scrutinised these matters. Over and above that, we had the evidence given to the Public Bill Committee by, for example, the noble Lord, Lord Reid, and Charles Clarke. They were asked whether they thought that ICR were a key part of updating legislation for the current world, and both agreed definitively. I commend the contents of those three reports to the noble Lord, Lord Oates, and also commend to him the findings of the Joint Committee. He asked whether the UK was unique within the “Five Eyes” or indeed the world in seeking to develop these powers. It may well be that we are the forefront of developing them, and a good thing it be. I quote from the report by David Anderson QC:
“Comparing the UK’s legal regime with those of other countries is fraught with danger”.
I commend to the noble Lord, Lord Oates, what follows in that report because David Anderson develops those points and explains them. It is on the record, we have had it for a long time, we have considered it in the development of the Bill and the Joint Committee considered these matters. That is why the Bill is in its present condition.
The noble Lord, Lord Evans, observed that we have the ability to secure effective police investigations in areas where other countries have failed. I mentioned on a previous occasion the comparison between the results in the UK and Germany regarding the investigation and prosecution of cases involving paedophilia. I do not accept that, because we are ahead of others, somehow we are wrong.
Lord Oates
Does the Minister accept that the point is not just that we are in front of other common-law jurisdictions such as the US, New Zealand and Australia but that, in the case of Australia, as alluded to by my noble friend Lord Strasburger, this issue was specifically considered by the Australian Government and Parliament, and the Australian data retention law specifically excludes the collection of such information precisely because it was felt to be a disproportionate invasion of privacy?
Lord Keen of Elie
I invite the noble Lord to have a little more confidence in the parliamentary procedures in the UK, in the scrutiny that is being given by our institutions to the provisions of the Bill, and even in the Committee procedures of this House. We have looked with care at these matters repeatedly and have come to a view regarding ICRs.
Lord Keen of Elie
Not just yet. The fact that other jurisdictions may have taken a different view is to be noticed but is not necessarily of any great moment in this context.
I want to deal with the suggestion by the noble Lord, Lord Paddick, that somehow GCHQ could provide the alternative route into all this material, and that somehow the security services would be there at the beck and call of the police authorities in order to in-gather and provide the appropriate information by different means. He asserted that the security services said, “We do not need”. That is far too hard-edged. They have other means but they did not say, “We do not need” in that context.
The noble Lord suggested that I had made an assertion on a previous occasion about the admissibility of certain intelligence acquired by the security services. I did not make an assertion; I made a statement of fact. Intelligence acquired through interception cannot be used as evidence in court. That is the factual position.
Lord Paddick
This Committee is part of the process of the scrutiny of legislation, and therefore this House should have respect for noble Lords who wish to use it to challenge what the Government are proposing. With regard to the greater success that the UK has had compared with, say, Germany in the prosecution of paedophiles, will the Minister confirm that that is using existing legislation without the use of internet connection records?
On the question of an evidential basis, why, in the operational case for internet connection records, is the need for evidential material not included in any of the examples provided by the National Crime Agency? Why, when I visited the NCA on a couple of occasions, was none of the examples that it gave of a need for evidence that could be presented in court? Indeed, the case studies presented to me at GCHQ confirmed that the work done by GCHQ in conjunction with the NCA was sufficient for the NCA to bring successful prosecutions, notwithstanding that the interception of content is not acceptable in giving evidence in court.
Lord Keen of Elie
I am most obliged to the noble Lord for his intervention. Of course, I did not accompany him to the NCA, so I do not know what examples he was or was not given, and nor did I prepare or draft the operational examples that he referred to earlier. Of course, there are other means by which evidence may be gathered for the purpose of prosecution, but we are looking to the most effective means of doing this going forward, remembering that people are moving away from telephonic communication—using mobiles and telephone systems—and into the use of internet connection by way of such examples as WhatsApp. Our police forces will be blinded if we allow that development and do not attempt to keep up with such developing technology.
On the question of whether there is an evidential requirement, I note that the noble Lord now acknowledges that there is an evidential requirement in the sense that intelligence gathered by way of interception is not admissible as evidence in court.
The question of the cost of carrying out this exercise was raised. The figure of £1 billion has been put about repeatedly, and the experience in Denmark has been referred to on many occasions. However, one has to look at this from the perspective of the United Kingdom and its approach to this matter. We do not accept the estimate of £1 billion that has been given, and indeed—in response to the inquiry from the right reverend Prelate the Bishop of Chester—the current estimate of costs is about £175 million. Our figures factor in the existing infrastructure and the requirements already placed on individual communications service providers, as well as the technical complexity of their networks in this context.
One has to bear in mind that, for example, the Data Retention and Investigatory Powers Act 2014 and the Counter-Terrorism and Security Act 2015 already provide for the retention of source IP addresses and port numbers, which make up part of an internet connection record. So I cannot accept the assertion from the noble Lord, Lord Strasburger, that none of these records are provided for under existing legislation. Furthermore, the Bill allows the Government to require the retention of communications data, including internet connection records, only when necessary and proportionate. One must not lose sight of that test in this context.
So we consider that a case was made in the reports regarding internet connection records. We entirely agree with the view arrived at by the Joint Committee. The noble Lord, Lord King, has already quoted from its report that,
“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.
That has been clearly established by the work that has been done. I acknowledge that of course the Committee of this House wishes to scrutinise this legislation, and it is right that it does so, but it is helpful if it does so against the background and with an understanding of the pre-legislative scrutiny that has already taken place, with regard to the three reports and indeed the recommendations of the Joint Committee. So we submit that the ability to require the retention of internet connection records is a fundamental power that will provide substantial benefits to law enforcement and indeed to the security and intelligence agencies. It is in these circumstances that I say that we cannot support Amendment 156A.
I turn for a moment to Amendment 147A, which seeks to require judicial commissioner approval for applications to acquire internet connection records. I hope that I can persuade noble Lords that the amendment is not needed because we already have a stringent authorisation regime in place that protects against the abuse of applications for communications data. Indeed, the noble Lord, Lord Carlile, alluded to the suggestion that somehow our security agencies and police would have such time on their hands that they would simply roam around such communications data for their own amusement. One is entitled, surely, to discount such a proposition.
The Bill contains robust safeguards for every stage of the acquisition of any form of communications data. This includes requiring the use of an expert single point of contact; authorisation by a designated senior officer who is independent of the investigation and who must be of a rank approved by Parliament; comprehensive oversight by the new Investigatory Powers Commissioner; and the new offence of unlawfully acquiring communications data from a telecommunications operator.
On top of those general requirements, there are extra, specific safeguards for the acquisition of internet connection records. So internet connection records will be able to be acquired only if they are needed for one of the four specified investigative purposes—and local authorities, for example, will be barred from acquiring internet connection records in any form. As well as these protections, we have also tabled an amendment that provides for a crime threshold that must be met before internet connection records can be acquired. We addressed this issue earlier. This will prevent their use for low-level crimes.
So while we recognise that there are sensitivities concerning internet connection records, they will, among other things, be fundamental in resolving IP addresses in certain cases. For example, where the telecommunications operator uses technology that allocates the same IP address to a number of different customers, the internet connection record will help to determine the specific individual in whom law enforcement is interested. There has been cross-party agreement that we need to solve the problem of IP address resolution and I cannot see how it would make sense to require judicial authorisation for some types of IP address resolution but not for others, simply because of the technology that a telecommunications operator uses.
If a public authority were considering acquiring internet connection records in a way that was novel or contentious, it would certainly be right for additional safeguards to apply. That is why the draft communications data code of practice requires any novel or contentious application for communications data to be referred to the judicial commissioner. The Government believe that it is absolutely right that novel or contentious cases are referred to the commissioner, but we do not believe that the tried and trusted authorisation system for communications data should be fundamentally changed when there is no evidence that it is not working. Furthermore, none of the three independent reports that we have referred to and which informed the drafting of this Bill—from David Anderson, the ISC and RUSI—suggested or recommended any changes to the authorisation regime for communications data.
Finally, the noble Lord, Lord Strasburger, referred to the recent opinion of the Advocate-General in the case of Watson in the CJEU, which came out this morning. We note what was said in a fairly lengthy opinion. Your Lordships will be aware that that is the opinion of the Advocate-General, not the judgment of the court; a final judgment is anticipated in the autumn of this year. The Government maintain that the existing regime for the acquisition of communications data and the proposals in the Investigatory Powers Bill are compatible with EU law, and clearly it would not be appropriate to comment further while legal proceedings are ongoing. In these circumstances, I invite the noble Lord to withdraw his amendment.
Lord Oates
The Minister may have given an impression, which I am sure he did not intend, that by scrutinising the Bill and seeking to do so, noble Lords were somehow not cognisant of the history of the development of these proposals and of the various bits of scrutiny. He should correct that. I myself spent five years in the coalition Government very much involved in these discussions, and one reason I am sceptical about many of the things I hear about why we must do things is because I have heard them before. For example, on the third-party data issue, the Independent Reviewer of Terrorism Legislation David Anderson said in his report that it was unnecessary and no operational case had been made for it. So I want the Minister to be clear on that. Noble Lords are concerned not because they have not studied or are not aware of these things but because they are very much aware of them.
Lord Keen of Elie
No doubt noble Lords are cognisant of the three reports and the Joint Committee’s recommendations on the Bill. But I sought and seek to remind noble Lords of what those recommendations contained and of the terms of the Joint Committee’s report—particularly as the noble Lord, Lord Strasburger, who was a member of that committee, seemed to think it appropriate to depart from the recommendations which appear to have been made in its report.
Lord Paddick
My Lords, perhaps this is a bit of light relief. Clause 77(1) defines what conduct is lawful when it comes to obtaining communications data, and Clause 77(2)(a) goes on to say that someone cannot be sued if what they do,
“is incidental to, or is reasonably undertaken in connection with”,
the lawful conduct defined in subsection (1). So far, so good. Clause 77(2)(b) goes on to say that someone cannot be subject to any civil liability in respect of conduct that,
“is not itself conduct for which an authorisation or warrant … is capable of being granted”,
under various acts set out in subsection (3) and,
“might reasonably have been expected to have been sought in the case in question”.
If I understand this correctly—and I am sure I have not—if that conduct could and should have been authorised but was not, they can be sued, but if it was not something that could or should have been authorised, no civil liability arises. Either that cannot be right, or it is capable of misunderstanding and should be changed. Can the Minister put the provision in plain English? Our amendment is probing to ensure that we know what we are dealing with. I beg to move.
Lord Keen of Elie
My Lords, the provisions on the lawfulness of conduct authorised by Part 3 replicate those that apply currently in the Regulation of Investigatory Powers Act 2000. As we made clear in response to an identical amendment in the other place, the Bill goes no further as regards providing indemnity from civil liability for conduct that is incidental to, or reasonably undertaken in connection with, a communications data authorisation.
The provision as drafted ensures that a person who engages in conduct only in connection with an authorisation cannot be subject to civil liability unless that activity could itself have been authorised separately under a relevant power. That, we submit, must be right. The amendment would remove that provision entirely, which, in effect, would mean that a person acting lawfully under an authorisation that had properly been granted under the Bill would be at risk of civil liability if some incidental or reasonably connected conduct were not expressly covered by the authorisation.
I notice that it is a probing amendment. In those circumstances, I invite the noble Lord to withdraw it.
Lord Paddick
I thank the noble and learned Lord for what he has said. However, we tabled this probing amendment in order to understand what the provision means. Unfortunately, simply saying that it replicates legislation that is already on the statute book does not really help our understanding. Perhaps the noble and learned Lord can say whether the provision has been applied in the past under the Regulation of Investigatory Powers Act.
Lord Keen of Elie
I am not in a position to give a specific answer to that question, but I am content to write to the noble Lord on the point.
Lord Paddick
I am very grateful to the noble and learned Lord for his promise to write on this issue. My question is genuine. Perhaps it is because I am not a lawyer and my brain is not very big, but I contend that the provision is impenetrable. At this stage, I beg leave to withdraw the amendment.
Lord Harris of Haringey (Lab)
My Lords, I listened very carefully to the noble Lord, Lord Paddick, and his explanation of his amendments, but I was not at all convinced. If we believe that there is a need for the Bill, which I do, but have reservations about some of the issues around encryption, we have to ensure that the relevant agencies have some tools in their kit box. One of those tools has to be the ability to interfere with or look at the specific equipment. What the noble Lord is trying to do is to restrict the availability of that power to such an extent that it would effectively become almost useless. It would simply be available if you have one named individual. Therefore surely it is right that a significantly broader power should be available to engage here.
The question that the Minister who is going to respond needs to answer is this: how will the test of proportionality be applied in such cases? Presumably it is not proportionate to have such a broad sweep contained within the authorisation that it is inappropriate and overly onerous. The mechanism is therefore this: how is it determined that this is a proportionate and proper use of the power, and can we and the public be reassured that the mechanisms exist to ensure that that proportionality is adhered to?
Lord Keen of Elie
I am obliged to noble Lords. I know that these are probing amendments and I shall address them in that light. Of course some of these amendments were discussed in the other place and, as noted, were considered again by this Committee in the context of interception.
Amendments 158D to 158M and 169B to 169T would remove the ability of the warrant-requesting agencies to apply for a warrant against an organisation, a group of persons with a common purpose, or a group of persons carrying out the same activity. They would require a warrant to name or identify each person or piece of equipment to which the warrant relates and they would remove the ability to obtain warrants for testing and training activity. As I have already set out when we considered similar amendments in the context of interception, it is important that those responsible for keeping us safe have the powers they need. These amendments would undermine their ability to employ those powers.
Let me start with the amendments regarding unique identifiers. As I explained in the context of interception warrants, it is not always possible at the outset of an investigation to know or have identified all of the individuals who may be subject to a warrant over the course of that investigation. The example of a kidnap gang applies to equipment interference just as it applies to interception. When a warrant is granted against a gang, the person applying for the warrant may not know that there are four members of the gang rather than three. The ability to grant a warrant against the gang in order to establish its size and to identify co-conspirators is precisely why the Bill provides for thematic warrants. Thematic warrants are already available to the equipment interference agencies under the Intelligence Services Act 1994 and the Police Act 1997 and they are invaluable when investigating complex or fast-moving threats. It is right that the Bill should not undermine their ability to do this.
I would seek to reassure your Lordships that the Bill already provides in Clause 107 that the warrant has to describe the relevant persons, locations, activity or groups and the type of equipment to which the warrant relates in so far as it is reasonably practicable to do so. This is an important safeguard which will assist the oversight of thematic targeted warrants. The Investigatory Powers Tribunal recently considered the use of equipment interference in this way. It determined that,
“a warrant is lawful if it is as specific as possible in relation to the property to be covered by the warrant”,
and that,
“it need not be defined by reference to named or identified individuals”.
Let me turn to the amendments that seek to remove the ability to grant a warrant relating to particular subject matters. This was also discussed at some length in the other place and very recently in this Committee, again in the context of interception. Such a change would be operationally damaging and is moreover unnecessary. The Bill and the statutory code of practice impose strict limits on the issue of warrants, including in relation to organisations or groups of persons. I should emphasise that such warrants are not open-ended. Their scope must be sufficiently limited that the issuing authority can properly assess the necessity and proportionality of the interference. Further, under the Bill a judicial commissioner will need to approve the issuing authority’s decision. So the clause does not allow for overly broad warrants to be issued. Moreover, removing the ability to seek warrants against persons carrying out the same activity could prohibit the agencies from, for example, seeking a warrant against individuals accessing a particular website in order to access child abuse images. In such cases it is vital that law enforcement should be able to identify suspects and bring them to justice.
Lord Paddick
I am very grateful for the lengthy explanation that the noble and learned Lord has provided. However, I still have questions. One of the examples he gave was to be able to interfere with equipment of a group of people who are accessing a particular website. I guess that you would need to know the IP addresses of the devices that were accessing that website to interfere with them, and that would be within the terms of our amendment. I may have lost concentration, and apologise to the Minister if so, but I cannot remember him addressing targeted examination warrants, where presumably the security services—the only ones who would apply for such a warrant—would know the identity of the people. I am still not clear about the need for thematic targeted examination warrants.
The big question that I have around testing and training is: who are the poor innocent people targeted by the warrants used for testing and training purposes? How is it decided who should be targeted? Will the Minister say what that other information is that needs to be specified in the warrant?
I accept that the withdrawal of these powers would be a mistake but, as the Minister acknowledged to begin with, these are probing amendments. I am grateful for the explanations he has given so far. Perhaps he might write to me to deal with my further and more difficult questions, but at this stage I beg leave to withdraw the amendment.
Lord Keen of Elie
I shall be happy to write to the noble Lord on the three particular points. I do not think that they were the more difficult questions but they may be the ones that I did not fully answer, and I am content to write to him.
Lord Keen of Elie
I am obliged to the noble Lord for his suggestion that this is essentially a probing amendment, which he directs at what he perceives as anomalies in the Bill. For reasons that I shall expand on, those anomalies do not exist.
Amendment 176 seeks to introduce a clause that would enable the Secretary of State to make regulations requiring that the authorisation of property interference under the Police Act 1997, where the purpose is to enable the interception of communications, should be subject to the equivalent approval processes as set out under Part 5 of this Bill, including double-lock review by a judicial commissioner. That is how I understand the amendment and the noble Lord indicates his agreement.
It is worth being clear that interception warrants are not issued under the Police Act 1997, but are currently issued by the Secretary of State under Part 1 of the Regulation of Investigatory Powers Act. However, sometimes it may be necessary for intercepting authorities to carry out property interference to enable interception to take place. In these circumstances, the intercepting authority would need to ensure that appropriate property interference authorisation is obtained in addition to an interception warrant.
Clause 14 will restrict the ability of law enforcement agencies to authorise this type of equipment interference under the Police Act 1997. The restriction will mean that where the purpose of the interference is to enable the acquisition of communications, private information or equipment data, the activity can no longer be authorised under the Police Act 1997. As a result, the amendment in question is not required, as it will not be possible to authorise the type of activity it envisages under the Police Act 1997.
In future, if it is necessary to interfere with property to enable interception to take place, the interference with equipment will need to be authorised under Part 5 of the Bill. The Bill and its associated codes of practice make it clear that an equipment interference warrant cannot authorise activity which would constitute live interception of communication in the course of its transmission. As a result, both an equipment interference warrant and an interception warrant will be required.
In practice, this activity is likely to be authorised as a combined equipment interference and interception warrant. Paragraph 3 of Schedule 8 to the Bill enables the Secretary of State to issue such a combined warrant to the relevant intercepting authorities, such as the NCA. This reflects the fact that the Secretary of State is responsible for issuing targeted interception warrants, and the Bill ensures that combined warrants always default to the most senior level of authorisation. Any such warrant would always also go through the double lock of judicial commissioner authorisation.
I hope that reassures the noble Lord that the amendment is not necessary and I accordingly invite him to withdraw it
Lord Paddick
I thank the noble and learned Lord for what he has said, but I did ask whether he would be prepared to offer an opinion about the deployment of a covert camera into somebody’s home without the need for either Secretary of State or judicial commissioner approval and what, in the Government’s opinion, is the right level of authority. I accept what he says about an interception warrant being required if equipment interference is for the purpose of intercepting communication. However, if it is for the purpose of observing what is going on inside an office or a home, I do not believe that that amounts to interception of communication as such, even though the people who are present in the room are communicating with each other. I do not think that amounts to interception of communication as intended by the Bill.
The other issue that I was hoping the noble and learned Lord could enlighten the Committee on is that equipment interference warrants issued to the security services require the double lock of the Secretary of State and a judicial commissioner, but equipment interference warrants issued to law enforcement do not require that double lock, because a police chief can self-authorise the issuing of such a warrant to such agencies. We have to bear in mind how intrusive that can be. We have already discussed that the equipment interference may not necessarily be in order to intercept communication, and the noble and learned Lord gave the example earlier of looking for a pornographic image on a computer. Despite what he said, it still seems an anomaly that the security services require a double-lock authority and the police do not.
Lord Keen of Elie
I am not sure to what extent I can respond before the noble Lord sits down, but let me be clear that I do not accept that there is an anomaly, because we are dealing here with two entirely different circumstances that are not directed to the present amendment. As regards a camera being placed in someone’s room, I undertake to write to the noble Lord on that if that will assist him, although it does not appear to me to assist with this amendment.
Lord Paddick
I am grateful to the noble and learned Lord, who has all the time in the world to add comments until I finally withdraw the amendment. However, I beg leave to withdraw it at this stage.
Investigatory Powers Bill
Lord Keen of Elie Excerpts(7 years, 9 months ago)
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Lord Rosser
We have some amendments in this group which, again, relate to the report from the Constitution Committee. Like the noble Baroness, Lady Hamwee, I acknowledge the amendments that the Government have tabled. They have certainly gone down the road that was indicated during the discussion on this matter in the Commons.
I simply want to ask the Minister whether the Government have given any consideration to going down the road suggested by the Constitution Committee, as opposed to that put forward in the Government’s amendments. I accept that there is not a great deal of difference between the two, as the Government’s amendments say that a person is not to be appointed unless they have been recommended by the Lord Chancellor and the Lord Chief Justice.
Finally, do the Government’s amendments also apply to the reappointment of commissioners and to dismissal? The recommendation in the Constitution Committee’s report related to appointments, reappointments and dismissal, but I am not clear whether the Government’s amendments would also apply in those three circumstances.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, Clause 203 provides for the Prime Minister to appoint an Investigatory Powers Commissioner and as many judicial commissioners as they see fit to undertake the duties set out in the Bill. The Investigatory Powers Commissioner, assisted by the judicial commissioners, will then undertake the work of ensuring that there is robust and comprehensive oversight of the use of all investigatory powers. If a judicial commissioner becomes unfit to perform the role, Clause 204 provides that they can be removed either by a resolution of both Houses of Parliament or by the Prime Minister acting alone in a very limited set of circumstances.
Many of the amendments to Clauses 203 and 204 seek to alter the relationship between the Prime Minister and the judicial commissioners to an unacceptable extent. These roles have a vital influence on crucial national security decisions and, as the person ultimately responsible for national security, it is only right that the Prime Minister should make these appointments.
It has been suggested that having the Prime Minister involved in the appointments will somehow weaken the independence of the positions. I refute that in the strongest terms. The principle of judicial independence is so deeply ingrained and is upheld by the judiciary to such an extent that suggesting it will be abandoned because the Prime Minister makes the formal appointments is simply unfounded. My noble and learned friend Lord Judge was clear in his evidence to the Joint Committee that having the Prime Minister make the appointments is a practical matter that will not affect the independence of the commissioner in any way. Some of the amendments put forward to Clause 203 would give responsibility for appointments to the Lord Chief Justice of England and Wales. We have difficulty accepting these amendments for two main reasons. First, it would be inappropriate for the Lord Chief Justice of England and Wales to be able to make appointments of judges from Scotland or indeed Northern Ireland, even if there were a requirement to consult the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland.
Secondly, the amendments do not provide a role for the Lord Chancellor and, given her overall responsibility for judicial appointments, it is necessary that the Lord Chancellor should be involved in the process. Instead of accepting these amendments, we propose Amendments 179, 181 and 182. Under these amendments, both the Lord Chancellor, who is ultimately responsible for appointing judges, and the heads of the judiciary, with their responsibility for the deployment of judges, will be able to recommend a suitable candidate for the role of Investigatory Powers Commissioner. Additionally, the Investigatory Powers Commissioner will be involved in recommending candidates for appointment as judicial commissioners.
This amendment significantly strengthens the role of the heads of the judiciary and the Lord Chancellor in appointments. It will mean that the Prime Minister can only appoint an individual who has been recommended and will help to ensure that the very best candidates are selected to perform these crucial roles. It will also ensure that the running of Her Majesty’s Courts & Tribunals Service is not unduly affected by these appointments.
The Lord Chancellor already has the power to recommend that Her Majesty increase, by Order in Council, the maximum number of judges of the High Court and Court of Appeal. Amendment 187 would place the Lord Chancellor under a duty to make such a recommendation if the Lord Chancellor considers it necessary in order for judges to be appointed as judicial commissioners without adversely impacting the operation of the courts. We do not consider that this is necessary. The Lord Chancellor will, by virtue of the amendments that we have proposed, be involved in the appointments process and already has the power to make such recommendations.
Clause 203(7) is entirely practical in its nature. It gives the Investigatory Powers Commissioner discretion to delegate his or her functions to another judicial commissioner. This is to ensure that the range of important functions the Bill will provide to the Investigatory Powers Commissioner can always be carried out—and at very short notice. It is appropriate that the Investigatory Powers Commissioner, who will be a senior member of the judiciary, is, as far as possible, given the freedom to operate in a way the commissioner thinks appropriate. That is why the clause offers discretion as to how functions should be delegated and to what extent.
If the Investigatory Powers Commissioner thought it appropriate to delegate their duties to a single judicial commissioner and create a de facto deputy, there is nothing to prevent them from doing so. Alternatively, they may think it appropriate to delegate certain duties to more than one judicial commissioner. This leaves the choice with the Investigatory Powers Commissioner, who we consider to be best placed to decide how to run their office. I hope that that provides some reassurance to noble Lords and I therefore invite them not to press their amendments.
In relation to government Amendment 190, I reconfirm that the Investigatory Powers Commissioner will have all the powers and access that the commissioner needs in order to carry out effective scrutiny. This is vital to the public’s confidence in the use of these powers and is central to the Bill. But it is also vital that the public servants who work to keep us safe are able to get on with their jobs and can do so safely. That is why the commissioner will be under certain duties, including a duty not to act in a way contrary to the public interest or to jeopardise the success of an operation.
But we do not think it is appropriate that those duties should apply to the judicial commissioners when they are exercising their judicial functions. Amendment 190 will ensure that this is the case. It makes changes to ensure that all of the decisions of a judicial commissioner following a refusal to approve an urgent warrant are caught. It also makes changes consequential on extending the double lock to national security and technical capability notices.
A number of the amendments proposed by noble Lords concern the means through which judicial commissioners may be removed from office. We are sympathetic to the concern behind these amendments. It is clear that a delicate balance needs to be struck. There needs to be some means to remove a commissioner, in the very unlikely event that they prove unfit to carry out the role. But the independence of the judicial commissioners demands that removal from office is treated with the utmost seriousness.
The Bill allows for the removal of commissioners in two ways. The first is by the Prime Minister in a very narrow set of circumstances, such as where the commissioner receives a sentence of imprisonment; and secondly, by the Prime Minister with the approval of both this House and the other place. We cannot accept amendments that would allow the Prime Minister to remove a commissioner on the grounds of inability, neglect of duty or misbehaviour—which are somewhat subjective terms—without Parliament acting as a check. I hope that the Government’s unwillingness to give the Prime Minister such unfettered powers demonstrates our commitment to striking the right balance in the appointment and dismissal procedures.
Conversely, I do not see the need to consult the judiciary and others concerned in the appointment of the commissioners before removing them from office. As I say, it will be possible to remove judicial commissioners from office only in very narrow circumstances or with the approval of both this House and the other place. I hope that noble Lords will agree that these are adequate safeguards to ensure that a commissioner cannot be removed from their post on the whim of the Prime Minister.
With respect to the question asked by the noble Lord, Lord Rosser, the government amendments will apply to reappointments but not to dismissal.
I hope that my response has reassured noble Lords and I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I do not wish to go through all of the amendments sequentially; rather, perhaps I may pick up on just two points.
On independence, the point really being made by the Constitution Committee is about perceived independence. I certainly would not question that. Happily, our judiciary is splendid in that respect. I think it was my noble friend Lord Carlile who talked about the halo; that seems to apply to all of our judiciary unquestioningly. As I say, the point here is the perception.
I acknowledge that we should have referred to the Scottish and Northern Ireland judiciary in our amendments, but I am interested in the point made about the Lord Chancellor. The Lord Chancellor has a role in making the judicial appointment in the first place, which then puts the individual in the position to be appointed as a commissioner. As I understand it, we have a Judicial Appointments Commission and then the Lord Chancellor has a role after it has done its work in allocating the appointees. We were not seeking to exclude the Lord Chancellor; I had just assumed that the Lord Chancellor was in there in any event. I want to make that point clear.
I shall be interested to read the points that have been made just to check that everything has been covered, but perhaps not until next week. I am grateful to the noble and learned Lord, and I beg leave to withdraw the amendment.
Lord Keen of Elie
There was a point I omitted to mention, which the noble Lord, Lord Rosser, raised. He asked whether the Government had given consideration to the recommendations of the Select Committee. Clearly we have done so, albeit we have not slavishly followed all of them. I reassure the noble Lord that we did so.
Lord Keen of Elie
“( ) A person is not to be appointed as the Investigatory Powers Commissioner unless recommended jointly by—(a) the Lord Chancellor,(b) the Lord Chief Justice of England and Wales,(c) the Lord President of the Court of Session, and(d) the Lord Chief Justice of Northern Ireland.( ) A person is not to be appointed as a Judicial Commissioner under subsection (1)(b) unless recommended jointly by—(a) the Lord Chancellor, (b) the Lord Chief Justice of England and Wales,(c) the Lord President of the Court of Session,(d) the Lord Chief Justice of Northern Ireland, and(e) the Investigatory Powers Commissioner.”
Lord Keen of Elie
Lord Keen of Elie
“(b) dealing with the situation where a warrant issued, or modification made, for what was considered to be an urgent need is not approved,(c) reviewing any decisions taken in dealing with the situation mentioned in paragraph (b),(d) deciding whether to approve the giving of a notice under section 225 or 226, or(e) participating in a review under section 230 or deciding whether to give approval under that section.”
Investigatory Powers Bill
Lord Keen of Elie Excerpts(7 years, 9 months ago)
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Lord Murphy of Torfaen (Lab)
The whole purpose of this legislation, whether we agree with it or not, is that there should be a double lock. When I was signing warrants for intercept, it was left to me entirely as Secretary of State. There was no involvement of the judiciary or anybody else, other than the security services providing you with a great deal of information on why you should take a particular decision. The principle behind the Bill is that a judge should look at and review the decision of the Secretary of State. The argument both in the Joint Committee and in the other place has been about whether the judge should take into account necessity and proportionality—which would have been taken into account by the Secretary of State in taking the decision in the first place—in the same way as the Secretary of State, or whether they should look at it simply through the eyes of a judge.
One of the most interesting sessions of the Joint Committee was in the Committee Room upstairs where we interviewed a judge from New Zealand—it was 5.10 am when the judge very happily came to address the committee. That is obviously a very different sort of country. With a couple of million people, they obviously do not have the same number of warrants to deal with as we do in this country. It seemed, however, from what the New Zealand judge was saying, that there was a happy relationship between him and the appropriate government Minister in New Zealand, in that when they looked at a warrant, they did so with the same eyes.
The noble Lord, Lord Carlile, is saying that if you take into account modern judicial review principles, you also take into account proportionality and necessity. But that has to be made clear. I understand that the Government made some changes in the other place with regard to this matter, but the precise role of the judge needs to be made clear. Does he or she look at a warrant simply as a judge or as a human being, and is it in the same way as the Secretary of State does?
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I begin with some of the observations made in your Lordships’ House regarding judicial oversight. On the observations of the noble Lord, Lord Strasburger, I have a double lock on my front door. The two locks work differently but they are equally effective. That really is the point of the double lock in the context of this legislation: the locks do indeed work differently but they are equally effective at the end of the day. I would adopt the observation of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that judicial oversight as it has developed provides us with a flexible standard of oversight, which in many senses is wide-ranging, as has been observed. But, of course, it is judicial oversight, and that is what we have to emphasise.
Turning to a point raised by the noble Baroness, Lady Hamwee, on working days a week, we consider that the present provision is appropriate. As to the calculation of the working day, the third working day will be calculated from the day after the warrant is issued. For example, if a warrant is issued on a Monday, it must be authorised by the commissioner by the close of Thursday. So it is the date of issue plus three working days.
Amendments 39 to 42, 165A, 167 and 168A would significantly change the so-called double-lock safeguard, such that the judicial commissioner would be taking their own decision rather than reviewing the Secretary of State’s conclusions as to whether the warrant is necessary and proportionate. The Committee will appreciate that the issue of authorisation has been a central feature in the debate on the Bill. Perhaps I might just give a brief potted history of its development.
The three reviews that shaped the draft Bill—by David Anderson QC, the Intelligence and Security Committee of Parliament and the Royal United Services Institute surveillance panel—made different recommendations in respect of authorisation. One called for full Secretary of State authorisation and the other two called for a hybrid judicial/executive model. It is noteworthy that none of them called for full judicial authorisation for all warrants. The Joint Committee that undertook pre-legislative scrutiny of the draft Bill supported the double-lock approach set out in the Bill, including the use of the well-established principles of judicial review. At Second Reading in the other place, there was very strong cross-party support for a government amendment that preserved the double lock and the role of the judicial commissioner, while linking the judicial commissioner’s scrutiny to the new privacy clause, to put beyond doubt, if it needed to be, that the judicial commissioner would need to apply a sufficient degree of care to ensure that he or she had complied with duties imposed by the new protection of privacy clause in Part 1 of the Bill. So we are on well-trodden ground, and it is clear that there is strong support—including from senior members of the judiciary—for the approach set out in the Bill.
These amendments would confuse the distinct roles of the Executive and the judiciary and undermine democratic accountability—a point touched on by the noble Lord, Lord Rooker. It is surely right that a Secretary of State, who is accountable to Parliament and ultimately to the public, should be making the decision as to whether a warrant for the most intrusive powers is necessary and proportionate. Equally, it is entirely appropriate that a judicial commissioner should be carefully reviewing that decision. While the commissioner’s role is to review the original decision, your Lordships should be clear that this is a robust safeguard. Also, the judicial commissioners will have held or will be holding high judicial office and will be familiar with the principles of judicial review.
As amended in the other place, Clause 23 makes it clear that the commissioners’ review must involve careful consideration and ultimately if the Investigatory Powers Commissioner does not approve the decision to issue the warrant, it cannot come into force. The amendments I have referred to would also require the judicial commissioner to consider the reasons given for the decision to issue the warrant. The amendment is based on a misunderstanding of how warrants operate. The Secretary of State will receive a detailed application setting out the necessity and proportionality considerations. If they agree, they will issue the warrant. They do not have to give reasons for the decision beyond confirming that they personally consider that the warrant is necessary and proportionate. The judicial commissioner will review the decision of the Secretary of State based on the evidence provided to the Secretary of State in the application. If the commissioner thinks that the evidence in the application is not a sufficient basis for the decision that has been made, the commissioner will refuse to approve the decision. We would submit that it is in these circumstances that the double-lock mechanism is appropriate in this context, and accordingly I invite the noble Baroness to withdraw the amendment.
On Amendments 16 and 19, I have already touched on the reference to removing the term “working days”. Our position is that that is an appropriate way forward with these provisions, and I again invite the noble Baroness not to press these amendments.
Amendments 97 to 99 would significantly alter the double-lock safeguard for notices, such that the judicial commissioner would be taking their own decision rather than reviewing the conclusions of the Secretary of State as to whether the notice under Part 9 of the Bill is necessary and proportionate. The amendments would accordingly also remove the requirement for the judicial commissioner to apply the same principles as would be applied by a court in an application for judicial review. As discussed during scrutiny by this House of similar clauses in Part 2 of the Bill, these amendments would confuse the distinct roles of the Executive and the judiciary, as I mentioned earlier. It is right that a Secretary of State, who is accountable to Parliament and ultimately the public, should make the decision whether it is necessary and proportionate to impose obligations on operators through the giving of a notice. Equally, it is entirely appropriate that a judicial commissioner should be carefully reviewing that decision. As I stated previously, the commissioner’s role is to review the original decision, and your Lordships should be clear that this is a robust safeguard.
One of the amendments would also require the judicial commissioner to consider the reasons given for the decision to give a notice, and again as I indicated before, this amendment appears to be based on a misunderstanding of the process of giving a notice because the reasons are not provided. In other words, under the Bill there is no need to give written reasons over and above those set out in the application itself. Again, in that context I would invite the noble Baroness not to press the amendments.
Baroness Hamwee
My Lords, I am grateful to all those who have taken part in the debate either to support or oppose me, and of course one is used to one’s friends being behind one sometimes. Perhaps I should make a disclaimer. Many years ago the noble Lord, Lord Rooker, when he was at the Dispatch Box was being a bit disparaging—that might be the term—about lawyers and, when I protested, said to me, “Not you. You’re not a lawyer”. Solicitors are excluded for this purpose.
I turn first to “working day”. The noble and learned Lord has said in effect that he disagrees with me, but I am not sure on what basis. Clause 24, where the term first comes up, deals with urgent cases, so it seems counterintuitive that one might have an extended period for dealing with an urgent case rather than one that is as tightly drawn as possible. Can the noble and learned Lord offer the Committee more as to the Government’s reasoning on this?
Lord Keen of Elie
Originally, the period was five working days and, after due consideration, it has been reduced to three. That is considered to be an appropriate period in the context of these provisions. But the Government have reviewed the measure and, as I said, that amendment has already been made.
Baroness Hamwee
Turning to judicial review, determination, refusal to approve and so on, the debate has made my point that we need greater clarity than is provided in these provisions. I agree with my noble friend Lord Carlile—the Committee may be relieved to hear that there is some agreement—at least to the extent that we should know what we want, and we do not yet have clarity in the Bill. A number of noble Lords are clear about what they want, but the Bill is not clear as to what the job is. Clause 23(4), the same clause that provides for a review, states:
“Where a Judicial Commissioner … refuses to approve”.
That suggests something more than we have been hearing about and does not suggest a double lock. I heard what the noble Lord, Lord Murphy, said, and we now have references in Clause 23(1) to necessity and proportionality. However, in assessing those matters, the judicial commissioner must apply the principles of judicial review. I may not be a lawyer in the terms of the noble Lord, Lord Rooker, but I find that this has a degree of circularity and confusion.
In his evidence to the Public Bill Committee, the noble and learned Lord, Lord Judge, said:
“I myself do not think that judicial review is a sufficient indication of those matters”.—[Official Report, Commons Public Bill Committee, 24/3/16; col. 68.]
Although I will not seek to pursue the matter today, we may well wish to return to it.
Lord Keen of Elie
I should correct a reference I made. I referred in the context of the working days to Amendments 16 and 19, which must have puzzled the noble Baroness. That was my internal numbering and I was, of course, referring to Amendments 43 and 61. I apologise for that.
Baroness Hamwee
My Lords, I was so confused that I did not even bother to check the references. I beg leave to withdraw the amendment.
Lord Rosser (Lab)
Perhaps I may make a brief comment about Amendments 85A and 85B in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. We, too, want to hear the Government’s response to the views expressed by the Delegated Powers and Regulatory Reform Committee. I will not go over those views, since the noble Lord, Lord Paddick, has already set them out. In brief, the first is the fact that paragraph 33 of Schedule 8 includes a power to amend the provisions of Schedule 8 itself. The committee said that it needed “a very convincing explanation” of why that was necessary; otherwise, it would find the power inappropriate. The other, as the noble Lord said, concerns the fact that the powers conferred by paragraph 33 of Schedule 8 include a power to amend future enactments whenever passed or made. The committee commented that it felt that such powers were inappropriate. In view of the comments made by the committee, we, like the noble Lord, wish to hear the Government’s response to the committee’s points.
Lord Keen of Elie
I will begin with that last point on Amendments 85A and 85B. The Government believe that the power is necessary for the reasons outlined by the noble Lord, Lord Paddick, but we are conscious of the terms of the report made by the Delegated Powers Committee. We are still reflecting on those comments and intend to respond in due course. I hope that that will give some satisfaction to the noble Lord. The matter is still under consideration and no final view has been arrived at.
I now turn back to the matter raised by the noble Baroness, Lady Jones. By way of background, your Lordships will be aware that, last November, the Prime Minister announced additional protections for the communications of Members of Parliament and Members of other legislatures, including the Scottish Parliament and the assemblies. Clause 26 sets out the requirement for the Prime Minister to approve the Secretary of State’s decision to issue a warrant to acquire communications sent by a Member of Parliament or intended for a Member of Parliament. Again, I use the term “Member of Parliament” to embrace Members of the other legislative assemblies referred to by the noble Lord, Lord Murphy.
Amendment 43A would remove the role of the Secretary of State from the warrant authorisation process where the Wilson doctrine is engaged—I will come on to the Wilson doctrine in a moment—which would in fact reduce the safeguards for parliamentarians. In line with the commitment given by the Prime Minister last November, the Bill provides a triple lock where warrants concern a parliamentarian’s communications: they must be authorised by the Secretary of State, agreed by the Prime Minister and authorised by a judicial commissioner.
I will not rehearse again the arguments for the double lock at this point, but it is important to remember that it was endorsed by the Joint Committee of Parliament that scrutinised the draft Bill and that, following amendments made in the other place, it enjoyed cross-party support. The triple lock for parliamentarians simply adds an extra layer of checks to this important process. It is difficult to see what possible benefit would accrue from removing one of those checks—that is, the Secretary of State—which would also serve to undermine the accountability of the Secretary of State to Parliament for the activities of the agencies that the Secretary of State oversees. In view of that, I respectfully invite the noble Baroness to withdraw her amendment.
Amendment 45 would provide a role for the First Minister of Scotland in approving warrants to acquire communications sent by or intended for a Member of the Scottish Parliament. However, we do not consider that it would be appropriate for the First Minister to have a role in approving a decision taken by the Secretary of State on what is a reserved matter.
As to the operation of serious crime warrants, which the noble Lord, Lord Paddick, might have had in mind, particularly in Scotland, it is of course for Scottish Ministers to determine what additional safeguards they wish to provide in relation to parliamentarians. That is a devolved matter within their competence, and the same may in due course apply in the context of the Welsh Assembly—or, indeed, any other assembly that is set up.
The effect of Amendment 44 would be to provide for the Prime Minister to inform the relevant legislature that such a warrant or warrants has or have been issued—a point raised by the noble Lord, Lord Beith. Noble Lords will be aware that the Wilson doctrine, as it is termed, followed from a statement made by the then Prime Minister that, as a general policy, there would be no tapping of MPs’ telephones—but that, if there was a need to make a change to this general policy, the Prime Minister would, at a time of his choosing and when the national security situation allowed, make a Statement in the House. That is what is encompassed within the Wilson doctrine.
In a Written Ministerial Statement last November, the Prime Minister again confirmed that the Wilson doctrine continued to apply. He went on to explain the Government’s position on the Wilson doctrine and how it would apply in the 21st century. In his Statement, the Prime Minister was clear that the Wilson doctrine does not place an absolute bar on the interception of parliamentarians’ communications and confirmed that he would be consulted should there ever be a requirement to target a parliamentarian under a warrant issued by a Secretary of State. As has been noted, particularly as a result of the changes in the other place, the Bill now goes further by providing that the Prime Minister must provide explicit authorisation for a warrant to target a parliamentarian’s communications.
I understand that every Administration since 1966 has confirmed that the Wilson doctrine remains in place. This Government have done so on numerous occasions in Parliament. The doctrine includes the Prime Minister’s commitment to inform the relevant legislature, at a time of his choosing and when national security allows, should there ever be a change to the general policy. There has been cross-party agreement on this issue for more than 50 years. In view of the Prime Minister’s statement, and the stringent safeguards in the Bill, which go further in statute than was previously provided for, no further statutory provision is considered necessary.
Lord Beith
Does that not make for a very limited interpretation of the Wilson doctrine? For the Prime Minister to have to come and make a Statement to the House, it would have to be, “It is now the Government’s policy to intercept the communications of MPs generally, or widely, and this represents a change in policy”. That is the only way I can understand the doctrine working in the way that the Minister described.
Lord Keen of Elie
I concur with the observation of the noble Lord. It would have to be a change to the general policy that prompted a Statement to Parliament. It is not the use of the statutory powers that will ever prompt a Statement to Parliament. Indeed, if a parliamentary Statement were required in those circumstances, it would essentially undermine the purpose of these investigatory powers.
Baroness Jones of Moulsecoomb
Still on the Wilson doctrine, we heard from the Investigatory Powers Tribunal that the Government could not guarantee that parliamentarians’ communications would not be intercepted. They simply could not do it, because the intelligence services cannot remove our addresses and phone numbers from their bulk interception. So it is quite possible that parliamentarians’ communications are intercepted on a regular basis by accident. It is only when they are targeted that the process with the warrants kicks in. That was the ruling from the tribunal.
Lord Keen of Elie
I concur that there may be instances in which parliamentarians’ communications are not targeted but where a parliamentary communication is disclosed incidentally to investigations of third parties. However, one cannot plan for that or provide for a warrant for that in advance. It is a consequence, sometimes, of actions against third parties.
May I move on to Schedule 8 and the subject of combined warrants, which I touched on before? I confirm what I said at the outset: that this issue is still under consideration. I hope that, taking that into account, the noble Lord will consider it appropriate not to press his amendments.
Lord Rooker
Can I ask the Minister a question before he finishes? I did not want to interrupt what he was saying about the government amendments, but in reading Amendment 226, do I take it that the judicial commissioner gets involved only after the Prime Minister has given approval? It is not clear, but I am just assuming that has to be the case, so that the Prime Minister has also had oversight of the decision, rather than the Prime Minister coming in after the judicial commissioner has agreed, say, the Home Secretary’s decision.
Lord Keen of Elie
The noble Lord is, I believe, entirely correct. The sequence will be that the Secretary of State will approve the warrant, the matter will be brought to the attention of the Prime Minister, who will then address it, and only after that will it go to the judicial commissioner, who will then apply his review process to the determination that has been made.
Lord Lester of Herne Hill
My Lords, I wonder whether, just for the sake of completeness, I could get an assurance about this. On the first day in Committee the noble Earl, Lord Howe, with his customary courtesy, moderation and generosity, said that the Government would think again about Clause 2 and what I had said about its compatibility with the convention. I fully understand the Government’s reasons for the amendments now in this group, but they are of course parasitic on what is now in Clause 2, so I very much hope that Clause 2 will be improved before the Bill goes much further.
Lord Keen of Elie
I note the noble Lord’s observations. I cannot elaborate on the observations made by the noble Earl in response to his question, nor can I necessarily meet the manner in which he responded to him.
Baroness Jones of Moulsecoomb
I thank all noble Lords who have commented on my amendments, and the Minister for his answers. When we debate here, we often forget what it looks like to outsiders. I am naturally extremely law-abiding—I stop at red lights, I do not drop litter—but I am also highly suspicious of authority. As far as I can represent a constituency outside, I represent people who are suspicious of politicians. They are probably also suspicious of lawyers, but possibly not quite as much. When we have politicians signing off on other politicians, we must accept that it will not look that good to some people. You might argue that those highly suspicious people are not the people who put us here, which is of course quite right, but at the same time, we must be aware of what it looks like for our reputation. I accept that the amendment is not particularly popular, so I beg leave to withdraw it.
Lord Brown of Eaton-under-Heywood
I was not intending to say anything this afternoon, let alone on this amendment, but following what the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Beecham, have said, it occurs to me that if one widens out the provision that is the subject of Amendment 48 to introduce some essentially non-legal consideration, one would have to make it subject also, as routinely across this legislation, to ministerial approval. They must be answerable for that non-legal aspect. I therefore suggest that this might be a situation in which one should have two primary decision-makers, not therefore judicial oversight but judicial primary decision-making on the legal aspect—such as whether it is in truth a legal professional privileges situation and whether, in so far as criminal purpose is relied on, that is satisfied. However, in so far as the wider terrorism situation is being addressed, the justification for all that should initially be put at the ministerial door as well.
Lord Keen of Elie
My Lords, the Government recognise the importance of legal professional privilege—the client’s privilege—in the context of the rule of law. This is perhaps one of the most important issues that we will consider in the context of the Bill.
The noble Lord, Lord Pannick, outlined the operation of legal professional privilege and explained what is sometimes termed the iniquity exception. He went on to identify what he considered to be the issue of principle that we are concerned with in the context of the amendment and invited me to indicate whether I agreed with his outline of privilege—the iniquity exception—and the principle with which we are concerned. I am happy to concur and accept his clear exposition of the position in that regard. So I shall not elaborate on what is legal professional privilege or the iniquity exception, except to this extent. What is termed the iniquity exception arises where the client is using the conversation with the lawyer in furtherance of a criminal purpose, whether or not the lawyer is a witting party to that. If the lawyer is unwittingly used as a tool or a conduit, the iniquity exception would apply in those circumstances as well; with that, we have no difficulty.
However, there are further circumstances in which the iniquity exception would not necessarily obtain, and when a very important piece of intelligence might become available if the communication was considered by the relevant authorities. I go back to a scenario that I shared with number of noble Lords when we discussed this in recent days. An agency may have intelligence to suggest that an individual is about to carry out a terrorist attack. It knows that he is in contact or about to be in contact with a legal adviser, and it has reason to believe that that contact with the legal adviser might reveal information that could assist in averting the terrorist attack. The example is where the client might refer to his whereabouts. He might say, “I’m in Paris”, or “I’m going to be in Paris tomorrow”, or “I’m in London”, or “I’m going to be in London tomorrow”. It is that piece of intelligence in the course of the privileged communication that is critical. I know that some commentators—and, indeed, the Bar Council—have suggested that that would fall within the iniquity exception; it does not. Indeed, if we try to stretch the iniquity exception, we damage the concept of legal professional privilege, so we must be very careful about how we approach this.
So there is that exceptional situation—and it must be exceptional before any warrant could be contemplated—in which intelligence gleaned from such a conversation would be of critical importance. I stress the word “intelligence” because on occasion it is very easy to refer to this as evidence. Such intelligence would never be admissible in a court of law, so let us be careful about that. We are talking about intelligence as such, not evidence.
The noble Lord, Lord Pannick, suggested that this would be such an unusual event that to approve the power would be to approve a power of purely theoretical value. With great respect to the noble Lord, the fact that something is highly unusual or highly exceptional does not render the power theoretical. The power may not have been employed in the past and it may not be employed in the foreseeable future; that does not render the power theoretical. The occasion may arise, in the face of a terrible terrorist threat, in which such intelligence can be made available to the appropriate agencies. If we bring down a guillotine, LPP will be denied to them. So the power is not theoretical.
The noble Lord, Lord Carlile, made the very good point: we are really dealing here with the question of balance. Should we intrude upon what we see as legal professional privilege—that fundamentally important concept—for the sake of a highly exceptional case in which such intelligence could be critical? There is an element of balance there.
Lord Keen of Elie
If I might continue for a moment, reference was made to the potentially chilling effect—I am not sure about the chilling effect of burning down a house to roast a pig—that this would have on lawyer-client relationships. Indeed, the noble Lord, Lord Pannick, spoke of the enormous damage to the rule of law, with no lawyer able to say that his legal advice was confidential. With great respect, this power has been available to the relevant agencies since 2000. The safeguards that we wish to place in the Bill have been contained in codes of conduct since 2003. Can the noble Lord, Lord Pannick, give me a concrete example of enormous damage to the rule of law since 2000 because of that existing power? Can he give me a concrete example of a lawyer saying to his client, “I can’t give you confidential legal advice because of this exceptional power”, which has existed now for 16 years? I am not aware of any such examples, I have to confess. The noble Lord wanted to intervene, so I shall give way at this point.
Baroness Hamwee
My Lords, before the Minister responds to that, it seems that he would be in a better position to answer the question than the noble Lord, Lord Pannick, because I cannot see how he could give an example without someone having breached client confidentiality along the way.
Lord Keen of Elie
Let me say this: the matter is not speculative and it is not theoretical, as the noble Lord concedes. I am not aware of any example of this having happened in the past 16 years, but that does not render it speculative. The point is that the example that can be given—the example I gave—is one that could arise in the future. The question then is whether the agencies should have a means to secure that vital intelligence or face a complete brick wall. In this context, we would simply say this. In response to the point made by the noble Lord, Lord Pannick, over the past 16 years, there is no evidence of damage to the rule of law and no evidence of any intrusion on the ability of lawyers to say that their legal advice is confidential because it is appreciated that this is a wholly exceptional power.
Lord Lester of Herne Hill
If we assume that the Committee is with the Minister in saying that a wholly exceptional power that has never been used should now be given new parliamentary authority in this Bill, the next question to ask is: what about the intervention of the noble and learned Lord, Lord Brown of Eaton-under-Heywood? He said that there need to be adequate safeguards against abuse and suggested that the adequate safeguard would be that the judicial commissioner should look at the merits of the matter. Perhaps I may remind the noble and learned Lord of a case in the mid-1970s, Klass and others v Federal Republic of Germany, when the Strasbourg court said of surveillance powers that there must be adequate safeguards against abuse. It would help me to know what the adequate safeguards against abuse really would amount to.
Lord Keen of Elie
I am obliged to the noble Lord and I am coming to the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am not entirely unfamiliar with the case of Klass, and I thank the noble Lord for drawing it to our attention. We recognise that if this exceptional power is to be maintained in the Bill as it is in existing legislation, and if the safeguards in the existing code are to be improved, we must address that very clearly. That is why I have had ongoing discussions with the Bar Councils, the Scottish Bar and the Law Societies to try to achieve some consensus on this point. I therefore welcome the amendment because we are still considering the issue and we recognise the need to ensure that such an exceptional power is properly safeguarded. As to the actual means, we have not come to a final conclusion, but I note the suggestion of the noble and learned Lord, Lord Brown, and I am conscious that that might be one approach. However, I cannot commit us to any single approach at this time. I underline expressly that this power would only ever be employed in exceptional circumstances.
I rather think we are circling the same point. Of course the Government recognise the concerns that people have with regard to legal professional privilege. We understand the critical nature of that privilege and that any intrusion on it calls into question its effectiveness in the context of the rule of law. I go back to the point made by the noble Lord, Lord Carlile, that a balance must be struck here, but if there is a balance, there has to be something on each side. The question now is what we can put in place on our side.
Lord Keen of Elie
Perhaps I may finish before the noble Lord intervenes. That is why we will keep this under consideration for the purposes of Report stage.
Lord Carlile of Berriew
What the Minister has said is welcome, because we do not want to vote on this on Report but to try to find consensus on an important issue. In addition to considering the proposition of the noble and learned Lord, Lord Brown, I ask the Minister to try at least to provide the Committee with some qualitative evidence without breaching national security. I respectfully suggest that it might be worth talking to his friends in the Northern Ireland Office, who have enormous experience of this kind of issue. If it emerges that, even in that department, this kind of exceptional power has not had to be used for any useful purpose in the past 20 or so years, it will be real evidence that it is not required.
Lord Keen of Elie
I note what the noble Lord says and welcome the suggestion that we speak to the Northern Ireland Office to see what its experience has been over the past 16 years and take that into account. However, at this stage, without further elaboration, and appreciating that the Committee understands the issue of principle that we are concerned with, I invite the noble Lord to withdraw the amendment.
Lord Thomas of Gresford (LD)
I have listened with puzzlement. I know that anecdotes do not go down terribly well, but some years ago I was playing rugby for the northern circuit of the Bar against the Irish Bar. I became friendly with an American spectator and talked with him; I think that I introduced him to the Chief Justice of Ireland that evening at dinner in the King’s Inns. However, the following Wednesday half a page was written about the American, who was on the run from the United States for spying. Everything comes into that, including surveillance. I thought no more about it for a fortnight until the phone rang, and it was him. He said, “I want your advice”. I said, “Where are you?”. He said, “I’m in Paris”. I said, “What do you want to know?”. “He said, “Which countries don’t extradite to the United States?”. I could not conceivably breach legal professional privilege by telling your Lordships what my advice was, but would that merit a warrant for interception of the telephone call to me at my home from somebody in Paris in such circumstances?
Lord Keen of Elie
There might be circumstances in which the relevant individual was intent upon a terrorist outrage in Paris, and if the fact that he was going to communicate with the noble Lord was known to the authorities, they might consider that piece of intelligence to be absolutely critical to preventing that terrorist atrocity. In those circumstances, it is possible that the information could be obtained.
Lord Thomas of Gresford
But not the fact that he was proposing to escape charges of spying by going to another country. Was there something iniquitous about our conversation?
Lord Grabiner (Non-Afl)
There probably was because no solicitor was engaged. So privilege was not attracted at all.
Lord Keen of Elie
The noble Lord makes a good point, and it may be that the noble Lord, Lord Thomas, wishes to refer himself to the Bar Standards Board. However, I understand that the rules have changed since then.
Lord Thomas of Gresford
The first thing I did was to instruct a solicitor to go and see him.
Lord Rosser
I will make just one very brief point. These amendments on modifications relate to an area where the system could—and I use the word “could”, not “will” or “would”—be abused, in the sense of a significant modification being made to a warrant perhaps not having to go through the kind of process one would have to go through with the initial warrant. I hope the Minister might respond in a rather wider context than the specifics of the amendments and set out why the Government believe, as far as the Bill is concerned, that the modification process cannot be used to achieve a major change in a warrant without having to go through the proper procedures of getting judicial authorisation. To some extent, I think that what lies at the heart of this issue on modifications is wanting an assurance, which can be given really only by spelling out the process that would prevent the system being abused in this way.
Lord Keen of Elie
Perhaps I might begin with that last point. The whole structure of the Bill involves checks and balances. At the end of the day the Investigatory Powers Commissioner will carry out auditing and oversight functions to ensure that the requirements in respect of warrants and their modification have been adhered to. Therefore, it is a question of looking at the overall structure and functioning of the warranty system under the Bill. It is not spelled out in any one particular clause. I just make that observation at this stage.
Amendments 53, 55, 56 and 57 seek to provide that all modifications to a warrant must be authorised by a judicial commissioner. In our view, that is neither necessary nor appropriate. Clause 32 creates a carefully constructed regime, differentiating between major modifications and minor modifications. A major modification is one which adds or varies the name or description of a person, organisation or set of premises to which the warrant relates. A modification which adds or varies a factor identifying the communications described in the warrant will be a minor modification; for example, a minor modification might be adding a new telephone number for a known target. In addition, a modification that removes something from a warrant, and so reduces the conduct authorised by it, is a minor modification. The Bill makes this sensible distinction between major and minor modifications. In neither case is the judicial commissioner required to authorise the modification because the requirement to modify warrants to keep them up to date is first and foremost a safeguard.
I will explain how major modifications will operate under the legislation. The Bill provides for major modifications to be made only to so-called thematic targeted warrants. Current statute, such as the Regulation of Investigatory Powers Act 2000, allows for the issue of such warrants. They may be granted against, for example, the members of a kidnap gang. Thematic targeted warrants are invaluable in complex or fast-moving investigations. The Bill serves to put them on a clearer footing and to strengthen the safeguards that apply to them.
These warrants cannot be open-ended. Their scope must be sufficiently defined for the Secretary of State to be able meaningfully to assess whether the action is necessary and proportionate—the relevant statutory test. The Bill introduces a new safeguard, requiring the warrant to be modified to include names or descriptions of the subjects of the warrant, as far as it is reasonably practicable to do so, as the investigation progresses. This will assist the Secretary of State and the judicial commissioner in overseeing the warrant. There would be no benefit in having a commissioner authorise a modification that is being made in the first place only to inform his own oversight of the warrant. It would introduce unnecessary bureaucracy and the Bill already makes it clear that major modifications that engage the Wilson doctrine or legal privilege will be subject to the full double lock.
In our view, providing a role for the judicial commissioner in authorising a minor modification is even more superfluous. A minor modification caters for those circumstances where the subject of a warrant changes his phone or starts using a different email address. Those under investigation regularly change their phones or use different communications services in a bid to evade detection. The speed and volume of modifications of this nature are such that a role for the judicial commissioner in authorising the modification would cause the operational agility of the system to slow almost to a halt. This would inevitably have an impact on the ability of our law enforcement and security and intelligence agencies to perform their core function of protecting the public.
Clause 33 provides clear definitions of what constitutes a senior position in a public authority—that is, the authority that can deal with modifications—and an example is someone at the level of brigadier in the Ministry of Defence. We believe it is entirely appropriate that a person holding such a position is able to make a minor modification; for example, to determine that a new means of communication, such as a telephone number, being used by the person under investigation should be added to the warrant. Of course, we recognise the importance of ensuring the process for making modifications is as rigorous as it can be. That is why the Bill was amended in the other place to apply the necessity and proportionality test to minor modifications, as well as major modifications. Accordingly, I invite the noble Baroness to withdraw Amendment 53.
Amendment 54 would limit the circumstances in which a minor modification may be made to an interception warrant. It would have the effect that the only modifications that could be considered minor would be ones that either remove something from a warrant or correct an error in the description of a factor. We suggest that the amendment is unnecessary and would undermine the effective operation of the modification process. It would mean, for example, that where the subject of a warrant bought a new mobile phone, simply adding the mobile phone number to the warrant would be a major modification. The Bill would then require that this modification be made by the Secretary of State, or a senior official acting on their behalf, and notified to a judicial commissioner, even though the Secretary of State has already made the decision that it is necessary and proportionate for the communications of the individual to be intercepted, and the judicial commissioner has already approved that decision.
We recognise the importance of ensuring that the process for making modifications is rigorous. That is why we have amended the Bill following consideration in the other place such that there must be a consideration of necessity and proportionality for minor modifications, not just major modifications, as I mentioned before. We amended the Bill to ensure that the judicial commissioner is notified of a major modification to a warrant, as well as the Secretary of State, so that they have an ongoing visibility as to the extent of the activity authorised by the warrant. In conclusion, the process for making minor modifications is already sufficiently stringent, the amendment is unnecessary, and it would undermine the efficient operation of the warranty and modifications process. I invite the noble Baroness not to move Amendment 54.
Amendment 60 relates to where a major modification is being made when the protections for the communications of a parliamentarian or items subject to legal professional privilege apply. The amendment seeks to provide that, even where it is not reasonably practicable for the Secretary of State to sign the modification instrument, the instrument may be signed by a senior official only if it is being made urgently. This amendment is unnecessary and is, I believe, based on a misunderstanding of what Clause 34 provides for.
Clause 34 enables an instrument making a major modification where Sections 26 and 27 apply—in relation to parliamentarians and items subject to LPP—to be signed by a senior official where it is not reasonably practicable for the Secretary of State to sign it; for example, when the Secretary of State is out of the country, working in their constituency or otherwise unavailable. But the modification must still be personally and expressly authorised by the Secretary of State before the senior official can sign the instrument. The senior official is signing on behalf of and to acknowledge the Secretary of State’s authorisation. That is why we suggest that Amendment 60 may be unnecessary.
It may be appreciated that there will be instances when the Secretary of State is simply not physically able to sign a modification instrument. The purpose of Clauses 34(8) and (9) is to make explicit provision for this and to make it clear that a modification made in such circumstances—where the Secretary of State has approved but is not available—is not an urgent modification. That underlines the point I was seeking to make earlier, that there will always have been authorisation by the Secretary of State. Against that background, I invite the noble Baroness not to move Amendment 60.
Lord Strasburger
My Lords, I have a question for the Government. Am I correct in believing that evidence derived from equipment interference is permitted to be used in court? If so, could not equipment interference lead to an equally large and costly process of evidence-gathering? Why is there a difference between the two sources of evidence?
Lord Keen of Elie
My Lords, the Government are, of course, committed to securing the maximum number of convictions in terrorism and serious crime cases. The experience of other countries is that the use of evidence gathered through interception may help to achieve that. For that reason, the Government have considered whether there is a practical way to allow the use of intercept as evidence in criminal proceedings.
The issue of whether intercept material can be used as evidence has been considered in great depth no less than eight times since 1993. Each of those reviews—published by Conservative, Labour and coalition Governments—has concluded that the current prohibition which does not allow intercept material to be used as evidence should remain in place. This is the position maintained in statute since 1985, and provided for in the Bill at Clause 53.
The most recent review, in 2014, was overseen by an advisory group of privy counsellors from all parties, including my noble friend Lord Howard of Lympne and the noble Lord, Lord Beith, who is no longer in his place. That review went further than any previous review by considering the costs and benefits of a regime for the use of intercept as evidence, even if that meant considerable operational upheaval for the intercepting agencies. The review found that the substantial costs and risks of introducing the use of intercept material as evidence in court would outweigh the uncertain benefits.
When the conclusions of the latest review were published in December 2014, the Home Secretary undertook to keep the issue under review and to revisit it should circumstances change. But there has been no significant change since that time. We appreciate that the amendment is intended to provide for a change of circumstances to be reflected in secondary legislation. However, we consider that such a significant change as introducing intercept as evidence would be appropriate for primary legislation rather than regulations, even those subject to the affirmative procedure.
Finally, on the point raised a moment ago, it is the case that material derived from equipment interference is used in evidence. That has, historically, always been the case, and there is no need to move away from that established position. I invite the noble Baroness to withdraw her amendment.
Lord Strasburger
I thank the noble and learned Lord for his reply, but my question was: why is it in one case suitable to use the evidence in court, but in the other not?
Lord Keen of Elie
Because it has been established as a matter of evidential law over many years that it can be admitted. Therefore, adequate provision is in place for its admission as evidence.
Baroness Hamwee
I am not sure that my noble friend will feel that he has had further enlightenment, but I have to say that I agree with pretty much everything the noble and learned Lord said. The one thing he said which I could not really have known is that circumstances have not changed—I think that was his term. The amendment is by no means ideal, but we have taken only nine minutes on it, which in the context of the Bill is but a blink of an eye, and it was right to put on record our concern that the issue should not be lost sight of. I beg leave to withdraw the amendment.