Investigatory Powers Bill
Lord Paddick Excerpts(9 years, 8 months ago)
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Lord Paddick (LD)
I shall speak briefly to the amendments set out by the noble Lord, Lord Rosser, about co-operation with companies based oversees. A real concern to multinational companies is a conflict of law between the country in which they are based and the UK. That concern has been expressed to us as well. As we go through the Bill, we will see that co-operation between countries is increasingly important. As communication moves from cellular communication to communication using the internet, many of the companies that people use to communicate with each other—Facebook, WhatsApp and other platforms of that sort—are based in the United States. The more warrant authorisation processes are harmonised, the more there can be international agreements between countries and the more success we will have in securing communications data and intercept evidence as a result of people moving from cellular to the online environment. I generally support what the noble Lord, Lord Rosser, said about the importance of resolving these issues and forging as many agreements as possible with countries, particularly those where these widely used communications platforms are based.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I shall begin by addressing the amendments which relate to the serving of warrants and the giving of notices to overseas telecommunications operators. The first, Amendment 63, appears to remove the ability to serve a warrant outside the United Kingdom when the United Kingdom has entered into an international agreement with the country where that person or company is established. Perhaps that was not the intention. It seems counterintuitive to prohibit the service of a warrant on a person outside the United Kingdom when they are based in a territory with which the United Kingdom has an agreement which expressly provides for the service of warrants overseas. I wonder whether it was intended to do the opposite and provide that a warrant might be served on a person outside the UK only pursuant to a relevant international agreement.
In any event, it is important to remember that, although discussions are ongoing, there is currently no international agreement between the United Kingdom and the United States. As the Home Secretary has previously stated, the UK and United States Governments have begun considering a framework under which US-based communications service providers could disclose data directly to the United Kingdom for serious criminal and counterterrorism investigations in response to a UK order requesting the content of the communications—that is, a warrant. We are eager to press forward with developing an agreement. In response to the observations of the noble Lord, Lord Rosser, I can say that timetabling will depend on changes to the relevant US domestic legislation, a matter to which the United States Attorney-General recently referred. But it is not possible to give a more exact timetable so far as that is concerned.
Taking up the point of the noble Lord, Lord Paddick, of course it would be beneficial to all concerned that we should achieve some form of international agreement with regard to these matters, and it is hoped that the agreement with the United States might provide a template to take this forward. But let us accept that we are at a very early stage.
It is important to be clear that any company complying with warrants under an international agreement will not face enforcement action. I am perfectly content to put that important point on record for the noble Lord, Lord Rosser, who opened by explaining that these were essentially probing amendments, and I appreciate that. However, it is also important to explain that such agreements will not by themselves require a company to comply with a United Kingdom warrant. Even when an international agreement is in place, it remains vital that the Bill continues to exert extraterritoriality in relation to interception warrants. This also provides the legal certainty that some companies have been asking for.
Amendments 64 and 65, made to Clause 41, would set out that it would not be reasonably practicable for an operator outside the United Kingdom to comply with a warrant if that involved acting contrary to any laws or restrictions in the jurisdiction in which its principal office is located. These amendments are unnecessary because subsection (5) already makes it clear that, in determining whether it is reasonably practicable for a company to comply with a warrant, any requirements or restrictions under the law of the territory in which it is based must be taken into account. I do not want to quote the matter at length, but I will just refer to the relevant provision. In Clause 41(5), the matters to be taken into account include,
“any requirements or restrictions under the law of that country or territory that are relevant to the taking of those steps, and … the extent to which it is reasonably practicable to give effect to the warrant in a way that does not breach any of those requirements or restrictions”.
Therefore, it appears that this issue is already addressed. Indeed, what is said in the Bill replicates the existing position under the Regulation of Investigatory Powers Act 2000, as amended by the Data Retention and Investigatory Powers Act 2014.
I believe that the intention of Amendment 65A is to provide additional protections for staff employed in the United Kingdom by telecommunications companies whose principal offices are established overseas. Again, this additional language is unnecessary, and I will seek to explain why. In respect of interception warrants, the Government have already amended the Bill in response to concerns from overseas companies to make it clear that a warrant must be served in such a way as to bring the contents of the warrant to the attention of a person who is capable of providing assistance in relation to it. Clearly, an employee based in the United Kingdom who has no access to relevant information would not be such a person, as they would not be capable of providing the assistance required. The concern that enforcement action will be taken against junior local employees is also misplaced, since it is the telecommunications operator, rather than any individual, who is subject to the duty to provide assistance. I also make the point that it would not be in the interests of the relevant agency to serve a warrant or a notice in such a way that meant it could not be complied with quickly and efficiently. But the broader point is that if there is a conflict between United Kingdom law and the internal authorisation processes of an individual company, then of course United Kingdom law must always take primacy.
Amendments 104 and 105 would permit a person not to comply with a technical capability notice if the notice would require the person to act in a way contrary to any law or restriction in their country or territory. This amendment reads across provisions from other parts of the Bill—those relating to interception warrants and targeted communications data requests, as the noble Lord, Lord Rosser, noticed—but it does so inappropriately.
Lord Paddick
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have Amendments 26 to 31 in this group. Under Amendment 31, we have concerns about the breadth of warrants. These warrants are described as targeted interception warrants or targeted examination warrants. Noble Lords will no doubt recall that targeted examination warrants relate to where a bulk interception has resulted in coming across content that belongs to a UK citizen and, therefore a targeted examination warrant is required in those circumstances. Clause 17(1)(a) provides that a targeted interception warrant or a targeted examination warrant may relate to,
“a particular person or organisation”.
An organisation could cover hundreds, if not thousands, of people. I am indebted to my noble friend Lady Hamwee, who tells me that it could, in fact, relate to the National Trust—I am not sure about horticultural terrorism, but they have more than 1 million members. We are probing whether it is appropriate to have a targeted interception warrant that is targeted at an organisation, particularly when in Clause 17(1)(b), it says that such warrants can only apply to,
“a single set of premises”.
The potential contrast between the number of people who might be affected in terms of an organisation being targeted by a targeted interception warrant but only a single set of premises seems stark.
Similarly, Clause 17(2)(b) says that such a warrant may relate to,
“more than one person or organisation”,
so again it is very broad. The number of people––potentially innocent people––caught up in such a targeted interception could be extremely large.
Amendment 27 relates to Clause 17(2)(a), whereby,
“a group of persons who share a common purpose or who carry on, or may carry on, a particular activity”,
can be targeted by an interception warrant. To narrow the potential for this to affect a large number of individuals, the amendment would require each person to be named or identified using a unique identifier. While we accept that with, for example, members of a gang involved in drug dealing, one may not know the names of the individuals concerned, one might from surveillance footage be able to accurately describe the individual whom one wants to target by means of that warrant. A similar argument is suggested by Amendment 29 in relation to Clause 17(2)(b).
Amendment 30 relates to Clause 17(2)(c) and queries the issuing of warrants for “testing or training activities”. While Clause 17(3) defines what such activities are, it does not seem clear to us why it would be necessary to issue a targeted interception warrant to test equipment or train individuals in its use. One would have thought that, if it was a training or testing exercise, it could be done with the consent of whoever is being targeted by the training or testing activities. Amendment 31 therefore suggests that Clause 17(3), in relation to “testing or training activities” be deleted. I beg to move.
Lord Keen of Elie
My Lords, some of these amendments were discussed in the other place. They would remove the ability of the warrant-requesting agencies to apply for a warrant against an organisation; they would require a warrant to name or identify each individual involved in an operation, and they would remove warrants for testing and training activity.
As was set out in the other place, it is important that those responsible for keeping us safe have the powers they need. We consider that the amendments would undermine those necessary powers, but I appreciate that the noble Lord is advancing essentially probing amendments and I respond in that spirit.
Let me start with the amendment regarding unique identifiers. As was explained in the other place, it is not always possible at the outset of an investigation to know or have identified all the individuals who may be subject to a warrant during that investigation. When a warrant is granted against a kidnap gang, for example, the Secretary of State may not know that there are four members of the gang rather than three. The ability to grant a warrant against the gang to establish its size and to identify co-conspirators is precisely why RIPA provided for so-called “thematic” targeted warrants. They are an invaluable tool in allowing the agencies to investigate complex or fast-moving threats, and it is important that we do not undermine their ability to use that tool.
I reassure the noble Lord, Lord Paddick, that the Bill already provides at Clause 29(8) that the warrant has to specify, for example, the phone numbers to be intercepted. Furthermore, Clause 29(4) provides a safeguard for warrants that relate to a group of persons who share a common purpose or who carry on a particular activity—for example a paedophile network—by requiring that the warrant must name or describe as many of those persons so far as is reasonably practicable. I am afraid that I do not accept the analogy with the National Trust—I do not consider it apposite at all.
It is already the case that the warrant will name or describe particular people whose communications are to be intercepted as they become known over the course of the investigation. This is an important safeguard that will assist the oversight of thematic targeted warrants. It is therefore in these circumstances that I suggest that the amendment is not necessary.
Perhaps I may move on to the amendments that seek to remove the ability to grant a warrant against an organisation. 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. Such warrants are not open-ended. Their scope must be sufficiently limited that the Secretary of State can properly assess the necessity and proportionality of the interference. Further, under the Bill a judicial commissioner will need to approve the Secretary of State’s decision. In those circumstances the Bill will not allow for overly broad warrants to be issued.
I turn finally to testing and training warrants. The amendments would remove the ability to apply for a warrant for testing or training purposes. Again, I suggest that that would be damaging operationally and would result in a consequent reduction in safeguards. It is vital that those who are authorised to undertake interception are able to test new equipment and to make sure that those responsible for using that equipment are properly trained in its use. Of course there is an element of systems here in the context of the equipment. While it is possible for some testing of equipment to take place in a controlled environment, it is sometimes necessary to test equipment outside of controlled environments to ensure that it will work in real-life situations. There are therefore strict controls which govern the handling of material obtained in this way during such tests. However, we believe that it is right that it should be possible to test this equipment in scenarios where it can be checked that it is working effectively and to help ensure that the users are operating it correctly. Without the ability to test equipment, we will increase the risk of mistakes being made where individuals are not able to receive adequate training in the use of equipment.
The warrant application process in these circumstances allows the Secretary of State to understand the potential risk that communications will be intercepted incidentally to the purpose of the testing or training, and to agree the measures to be taken to reduce the chances of communications being accidently intercepted. There are clear safeguards in place to protect the privacy of citizens. Accordingly, I invite the noble Lord to withdraw his amendment.
Lord Keen of Elie
A thematic targeted warrant will be granted only in circumstances where the Secretary of State is satisfied that it is necessary and proportionate. None of the examples cited by the noble Lord comes within a hundred miles of that.
Lord Paddick
I am grateful to the noble and learned Lord for his explanation and I am reassured to some extent by, for example, some of the provisions he highlighted in Clause 29(8) and (4). I understand that in fast-moving situations such as a kidnapping it may be necessary to add people to the warrant or to encompass additional individuals who are not specifically named on the warrant. However, I wonder whether some safeguards can still be provided in slower-moving situations, or whether, as in the case where there are provisions for the urgent issuing of warrants, those provisions could be used in these cases.
As for the strict limits on the targeting of organisations, I accept, as I notice the Labour Front Bench also accepts, that these warrants must be necessary and proportionate, and that they provide some safeguards against overreaching in the use of these warrants. I am still puzzled about training and testing warrants. I accept that new equipment and individuals need to be trained in real, live situations, but I am a little concerned about who the individuals and organisations are that might be targeted in these training exercises, bearing in mind that the whole suggestion is that the normal provisions of proportionality and necessity, in terms of suspicions that these individuals are up to no good, would not apply in these situations. Therefore, what is learned? What privacy is being intruded into in the course of these training and testing activities?
My concerns remain about some of those areas, but I am reassured by other things that the noble and learned Lord has said and I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have Amendments 32 to 36 in this group. These amendments seek to probe the Government’s position and how far they might be prepared to go in adopting, for example, the recommendations that David Anderson made in his report about removing the Secretary of State from the issuing of targeted interception and examination warrants and replacing the Secretary of State, as the person who decides on these warrants, with a judicial commissioner. The volume of warrants that the Home Secretary, for example, has to sign amounts to as many as 10 a day. We are relieved that she does not now have the additional burden of having to run for leader of the Conservative Party, but one can imagine that to give proper consideration to 10 warrants a day is a significant undertaking, in addition to her other responsibilities.
In non-contentious cases, where there is no political aspect, such as law enforcement warrants, where one is dealing with serious crime—with drug dealers, for example—it is difficult to understand why one would need the Secretary of State to consider these issues. We obviously accept that there may be cases where there is political sensitivity, even in the case of serious crime, and it may be that the Bill can be amended to allow either for the judicial commissioner or even the applicant for the warrant to refer the matter to the Secretary of State in those cases. I also accept that in cases of national security—in cases where the security services, for example, are seeking a warrant, particularly where they may be looking at interception of foreign communications, even foreign diplomatic communications—there is a definite need for the Secretary of State’s involvement. However, as I say, the thrust of this group of amendments is to explore why the Government insist on the Secretary of State being involved in 75% of the warrants that, for example, the Home Secretary signs when those warrants appear to be non-contentious and not politically sensitive but simply to do with law enforcement and serious crime. I beg to move.
Lord Pannick (CB)
I support what the noble Lord, Lord Paddick, has said, and I too would be grateful for an explanation of why it is necessary or appropriate for the Secretary of State to be involved in the issuing of warrants in relation to non-contentious matters. My understanding—and I should be grateful if the Minister can deal with this—is that the Bill will impose those responsibilities on the Secretary of State in relation to basic policing functions, even though, under existing law, the Secretary of State has no role in the issuing of warrants in such circumstances.
Lord Paddick
I am grateful to the Minister for his explanation. I did say that the amendments were probing ones and suggested that national security and politically sensitive issues—as with the Lee Rigby case, to which he referred—would have to be outside this provision. The fact is that in 2014 the Home Secretary personally authorised 2,345 interception and property warrants and renewals, which is about 10 a day. Even David Anderson was shocked by the number of warrants that the Home Secretary had to personally sign, which was why he came up with his recommendation. As the noble Lord, Lord Pannick, said, our understanding is that the number of warrants which the Secretary of State will have to sign will increase as a consequence of this legislation. David Blunkett, who has written of his time as Home Secretary, said that:
“My whole world was collapsing around me. I was under the most horrendous pressure. I was barely sleeping, and yet I was being asked to sign government warrants in the middle of the night. My physical and emotional health had cracked”.
I am sure that the current Home Secretary is more resilient than the noble Lord, Lord Blunkett, was in those circumstances.
Another issue, which I spoke about in the previous set of amendments, is the importance of international collaboration, particularly with the United States. I reinforce what my noble friend Lord Strasburger said. In America, federal investigative and law enforcement officers are generally required to obtain judicial authorisation for intercepting wire, oral and electronic communications. A court order must be issued by a judge of a US district court, a US court of appeals or a FISA judge. If we are to have these international co-operation agreements, again, as David Anderson pointed out in his report, it is important as far as possible to harmonise between different countries the authorisation levels of the system of authorisation. I will read what the Minister has said in his response and I agree that the amendments as drafted go too far, but this is something that we can hopefully discuss between now and Report. If not, we may have to bring this matter back on Report. At this stage, I beg leave to withdraw my amendment.
Lord Paddick
“( ) A warrant may be considered necessary for the reasons given in subsection (2)(b) or (3) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed.”
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have Amendments 37, 121, 153 and 161 in this group. Basically, these amendments relate to Clause 20, “Grounds on which warrants may be issued by Secretary of State”. We suggest an additional paragraph, where a warrant is issued for the purposes of preventing or detecting a serious crime, or in the interests of the economic well-being of the UK,
“only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed”.
I refer to the briefing provided by Liberty, which points out that one of the greatest problems, recurrent in every power in the Bill, is the lack of a reasonable suspicion threshold for surveillance warrants to be authorised for the purposes of preventing and detecting crime. It states that:
“Intrusive powers can be authorised in order to ‘prevent and detect serious crime’, or even (in the case of communications data) to collect tax, prevent disorder, or in the interests of public safety. However, these general purposes are left wide open to broad interpretation and abuse without requiring a threshold of suspicion”.
The briefing says that a requirement of reasonable suspicion, when the purpose to prevent and detect serious crime is invoked, would prevent the potential abusive surveillance of law-abiding citizens that has regrettably been seen in the past.
The threshold of reasonable suspicion has long been an important safeguard for citizens and law enforcers against the risk of arbitrary use of police powers. The necessary and proportionate standard invokes an important assessment of the extent of the intrusion, but it does not, as we read it, require a burden of proof. Perhaps the Minister could explain how or why the “reasonable suspicion” test should not be applied to the various powers covered in our amendments. I beg to move.
Lord Keen of Elie
My Lords, as the noble Lord, Lord Paddick, explained, these amendments seek to provide that certain authorisations can be given only where there is a reasonable suspicion that a serious criminal offence has been, or is likely to be, committed. It is almost like trying to compare apples and oranges. The construct of the Bill is not around reasonable suspicion. It is around necessity and proportionality. They achieve the same goal, but in different ways. These amendments are not necessary and, in the case of communications data, would undermine the ability of law enforcement and other public authorities to catch criminals and to keep the public safe. First, let me assure the Committee 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 under Clause 20. The same is true for authorisations to obtain communications data for the purpose of preventing or detecting crime. So these amendments respond to a concern that, I suggest, is misplaced.
Lord Keen of Elie
For example, in the case of a missing person there may be no reasonable suspicion but it may still be necessary and proportionate to grant a warrant in those circumstances. I hope that that is concrete enough.
Lord Paddick
I am very grateful to the Minister. While I accept that there are some cases where the test of reasonable suspicion is not required—he gave the very good example of a missing person—I still wonder why the Government are averse in all circumstances to having a “reasonable suspicion” test. If I understand what he is saying, I accept that it is implicit in the necessity provision of issuing a warrant. At this stage I beg leave to withdraw the amendment.
Investigatory Powers Bill
Lord Paddick Excerpts(9 years, 8 months ago)
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Lord Paddick
Lord Paddick (LD)
My Lords, my noble friend Lady Hamwee and I have Amendments 19 and 66 in this group. The relevant part of Clause 4 that we are talking about here deals with the definition of “interception”. Clause 4(1)(b) talks about interception being,
“to make any content of the communication available, at a relevant time”.
It is the expression “at a relevant time” that we wish to probe. Clause 4(4) describes “relevant time” as being during transmission, or before or after transmission. For us, that begs the question: what does “relevant time” therefore mean? Why does it have to be stated that “relevant time” is necessary, bearing in mind that it seems to cover every time before, during and after transmission?
I turn to Amendment 66. Clause 42(1) talks about interception being effectively lawful if both,
“the sender and the intended recipient … have each consented”.
This amendment simply suggests that that consent should perhaps be in writing. I beg to move.
Viscount Hailsham
My Lords, I would like to raise two points, if I may, about Amendment 66. I entirely agree with the suggestion that the consent should be in writing, and I would rather hope that the Minister will give us some reasons why it should not be, because on the face of it, it is an extremely sensible suggestion. As we all know, there is sometimes a certain degree of opaqueness regarding what people have or have not done. Looking at Clause 42, to which Amendment 66 applies, I have some difficulty in understanding the relationship between subsections (1) and (2). I am not sure why subsection (2) is there, given the language contained within subsection (1). Perhaps my noble friend can help us on that.
Lord Paddick
My Lords, I am very grateful to those who have contributed to this short debate, and very grateful to the Minister. On Amendment 19, I think that I am right in saying that the issue around phone hacking was on whether a voicemail that had not yet been listened to was still in the course of transmission, whereas a voicemail that had already been listened to was not in the course of transmission. That was a reason that the police gave at one stage for not investigating some of the phone hacking. I find the wording rather curious. I should have thought that it would be sufficient to say that communication included communication stored prior to or following transmission. But I am not a lawyer—I accept that.
I accept what the Minister says on written consent, on Amendment 66, but surely there are other ways in which consent can be explicitly given. For example, if a telephone conversation was being recorded, both parties to that conversation could say on tape, as it were, that they consented to the interception of that conversation. Perhaps we could give that some further consideration. I beg leave to withdraw the amendment.
Lord Paddick
Lord Paddick
My Lords, the amendment is in relation to the mandatory use of equipment interference warrants. The wording of the relevant section says that security services must secure an equipment interference warrant if the “intelligence service considers that” the conduct would constitute an offence under the Computer Misuse Act. Surely, it must be something more than just whether the particular intelligence officer considers that the conduct would constitute an offence under that Act. Surely, an equipment interference warrant must be obtained because, otherwise, it would constitute an offence, rather than simply if the intelligence service considers that it is.
Amendment 24 makes a similar point about restrictions on the use of Section 93 of the Police Act 1997. In this case it states that a “targeted equipment interference warrant” is required,
“if the applicant considers that the conduct would … constitute”,
an offence under the “Computer Misuse Act 1990”. I would argue that exactly the same considerations apply as with Amendment 23. I beg to move.
Earl Howe
My Lords, the amendments in this group seek to change the language used in relation to the equipment interference regime and Computer Misuse Act offences. Clause 13 provides that an equipment interference warrant under the Bill is mandatory if the intelligence service considers that the conduct would constitute a Computer Misuse Act offence and there is a British Islands connection. Similarly, Clause 14 provides that law enforcement agencies will be unable to authorise this type of equipment interference under the Police Act 1997 where the applicant considers that the conduct would constitute an offence under the Computer Misuse Act. This is an important safeguard.
The language in Clauses 13 and 14 reflects the fact that at the point of application the equipment interference agency may not be able to say with complete certainty whether the proposed interference will constitute an offence under the Computer Misuse Act. For example, when an MI5 officer is handed a compact disc by a source, it may not be clear whether the disc belongs to the source who intends the officer to use the disc, in which case the Computer Misuse Act would not be engaged, or whether it is owned by another person who does not intend the officer to access the disc, in which case the Computer Misuse Act would be engaged. In these circumstances, the applicant will need to consider the possibility of an offence occurring, consult legal advisers, where unclear, and seek the appropriate authorisation, if required. The language of the Bill reflects that it may not be certain whether the Computer Misuse Act is engaged. The language in the Bill and the code of practice anticipate that applicants will err on the side of caution.
Finally, and crucially, all equipment interference will be overseen by the new Investigatory Powers Commissioner, ensuring that there is independent and objective analysis of any decision regarding the possibility of conduct constituting an offence under the Computer Misuse Act. I hope that explanation will be helpful to the noble Lord and explains why this language is in the Bill. I therefore invite him to withdraw the amendment.
Lord Paddick
I am very grateful for that explanation. I understand that it may not be certain that something constitutes an offence under the Computer Misuse Act. Where it is an offence under the Computer Misuse Act, does the Bill allow a Security Service agent or law enforcement officer to ignore that provision?
Earl Howe
That cannot happen. Without a valid lawful authority, interference with equipment that is prohibited by the Computer Misuse Act will remain illegal. If a member of an equipment interference agency considered that no Computer Misuse Act offence would be committed before beginning an operation but later determined that an offence was likely to be committed, they would be required to seek appropriate authorisation.
Lord Paddick
I am very grateful to the Minister. I beg leave to withdraw the amendment.
Lord Murphy of Torfaen (Lab)
My Lords, the Joint Committee on the Bill—four Members other than myself, who chaired the committee, are present this evening—met journalists in evidence sessions. The Society of Editors and the National Union of Journalists met with the committee on 14 December last year, and of course many strong representations were made in writing to the Joint Committee on this very subject. The committee eventually recommended that,
“the Home Office should reconsider the level of protection which the Bill affords to journalistic material and sources”.
We recommended that it should be at least equivalent to that afforded by the Terrorism Act 2000 and by PACE, and that the Home Office should take into account the various aspects of the European Convention on Human Rights which affect this aspect of the Bill. I know that the Joint Committee on Human Rights has also made representations to the Government on this matter.
I support the amendment in the name of the noble Viscount, Lord Colville. His proposed new clause deals with wider protection from state surveillance, not just sources—for example, a politically sensitive investigation—in that it covers areas other than simply communications data; for example, equipment interference, and that orders should be sought from a judge, as with PACE. I congratulate the Government, as in Committee in the other place, Clause 73 was introduced, which made welcome changes to the Bill as it then stood. However, I agree with noble Lords who have already spoken that that is not quite sufficient and more needs to be done.
The issue the Joint Committee had to deal with was how precisely you define a journalist these days. It is very different from when I was a young man. With the advanced technology, what or who is a journalist? PACE defines it in some senses in that it at least refers to “journalistic material”. A journalist is,
“any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication”.
Therefore we can overcome these issues.
All the speakers so far have indicated that we are grateful to the Government for what they have done, but more could be done. I do not say that the precise wording of the proposed new clause in the amendment is the precise answer to where we are going, but Ministers—both here and in the other place—have indicated to me over the last couple of months that the Government are willing to look very carefully at how to ensure that journalists are properly protected under this legislation. It is certain that there should be no lessening of protection from what already exists under PACE. I fear that it is possible that that might be the case, unless we go a little further in protecting both the sources of journalists and their investigations.
I therefore hope that, when the Minister winds up, he will give us some joy and will indicate that, by the time we reach Report, the Government will have reconsidered some of these aspects and we will be able to ensure that this particularly important part of the Bill is dealt with properly.
Lord Paddick
My Lords, my name is to this amendment and I very much support it. As a former police officer, I feel I have to speak on both aspects of this. The noble Lord, Lord Black, spoke clearly and in detail about the need for very specific safeguards because of the experience that we have had with the Regulation of Investigatory Powers Act. Police have clearly not used legislation in the way that Parliament intended it to be used—that is, to establish who confidential journalistic sources are. I also support what the noble Viscount, Lord Colville of Culross, said about the danger to journalists, particularly camera operators in serious, spontaneous public order situations. This is an area where I have some expertise. At the moment there is a balance as experience has shown that media footage has, in certain circumstances, been useful to demonstrators in terms of misuse or excess use of force by police officers. If this were to change, and the demonstrators felt that material gathered by media operators was under the control only of the police, because of inadequate provisions in the Bill, it could tip the balance and journalists would become a target for violence in such situations.
Baroness Jones of Moulsecoomb (GP)
My Lords, I support Amendment 25 and declare an interest as the mother of a journalist. I also apologise for not having spoken at Second Reading; I was not able to be here. My only concern with Amendment 25 is that it does not go far enough and there is no “reasonable suspicion” test. We must remember that journalists often uncover some pretty heinous crimes and pretty awful stories. While we often talk about the damage they do and the crimes they commit, they also do some incredibly valuable work for our society, so I think this an extremely important amendment.
Investigatory Powers Bill
Lord Paddick Excerpts(9 years, 9 months ago)
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Lord Paddick (LD)
My Lords, this is a very complex Bill dealing with very technical matters in places, but we should not be intimidated by that. Nor should we simply say that we must give the police and the security services all the powers they ask for without scrutiny.
It is the responsibility of the police and the security services to ask government for the powers they believe they need in order to be effective. It is our responsibility—the responsibility of Parliament—to balance those requests against the tests of necessity and proportionality. There will always be a tendency for politicians to accede to the demands of the agencies of the state; should crime rise or terrorist acts be perpetrated, politicians could not be blamed if they had given the police and the security services everything they said they needed. Yet this has not always been the case. When the then Labour Government pressed the case put forward by the police for 90 days’ detention of terrorist suspects without charge, Parliament refused. The security services did not ask for such a power. Arguably, it was reasonable to turn down a power that would assist in the prosecution of offenders, provided that it did not affect the security services’ ability to prevent terrorist activity. Yet in this Bill, we face a similar demand from law enforcement for a draconian power that the security services say they do not need.
The Liberal Democrats recognise the vital role the police and the security services play in keeping us safe. We also recognise the need for trust between state agencies and the public, not least to ensure the flow of community intelligence—even more vital as the terrorist threat changes in nature and criminals become more sophisticated. In order to be effective, the police and the security services need to have powers to carry out surveillance, including the interception of communications, the retention and acquisition of communications data and equipment interference. This will involve intrusion into people’s privacy, but unless there is no other practical means of achieving the objective, intrusion into innocent people’s privacy should not be allowed, other than in exceptional circumstances, and even then it should be subject to the highest levels of oversight. Innocent people’s privacy should not otherwise be put at risk, let alone intruded into. Internet connection records—the only virgin territory in the Bill—are going to intrude into innocent people’s privacy.
I do not believe that anyone in this House believes that we do not have a right to privacy, but perhaps I should declare a personal interest in this area, in the example I am about to give. What about 25 years ago, when I was married to my wife, Mary, but I believed I was gay? Should I have been able to keep that situation private? What if someone today was in that position and wanted to research using the internet to get some help and guidance, for fear of talking to anyone and letting the cat out of the bag, like me in those days? This Bill requires internet service providers to record every website that everyone in the UK visits, to store that data for 12 months and to reveal those details to the police without a warrant if they suspect someone of crime. If someone alleged that I roller-skated into a shop, indecently assaulted someone and roller-skated out again—apparently, one of the allegations made against Sir Cliff Richard—details of every website I had visited in the past 12 months could be handed over to the police without a warrant if we allow this Bill to pass as it stands.
It is not too much of a stretch to think that someone might make an allegation against me, as a reasonably high-profile individual, so it would be not too far a stretch to think that I had better not seek confidential advice on the internet, in case it became public. How could it become public? Homophobia has been encountered in the police service, as has unauthorised disclosure of confidential information. “If you have nothing to hide, you have nothing to fear” is not the same as “If you have done nothing wrong, you have nothing to worry about”. Even if the police were to be trusted completely, massive pools—oceans—of data in the custody of private companies such as TalkTalk, one of the internet service providers that will be asked to store such data, would be sitting ducks for hackers, criminals, blackmailers and hostile foreign powers. For example, information that I frequently visited the Age UK and NatWest websites might make me a target for fraudsters trying to trick me into revealing my account details online by claiming to be from the bank, or they might even turn up at my front door, believing me to be frail and easily conned or overpowered.
The RUSI panel set up by Nick Clegg when he was Deputy Prime Minister set out 10 tests for the intrusion of privacy. It is those 10 tests on which our opposition to parts of the Bill is based. Not only should the Bill be measured against the 10 tests, but Liberal Democrat opposition to the Bill should also be measured against them. One of the tests is that there must be transparency: how the law applies to the citizen must be evident. How many people in the UK know that 12 months of their web history—albeit the website that they are looking at rather than any further pages on that website—will be kept in case the police want to see it, as a result of this Bill’s provisions?
The intrusion must be necessary in that there are no other practical means of achieving the objective. The security services MI5, MI6 and GCHQ say that they do not need internet connection records because they can get the information they need by other means.
The intrusion must be proportionate to the advantages gained, not just in cost and resources but also through a judgment that the degree of intrusion is matched by the seriousness of the harm prevented. Internet service providers reckon that this will cost more than £1 billion in set-up costs alone. The measure may not provide the police with the website someone has visited because it is so easy to conceal it. It will not give the police any information about whether, or with whom, someone was communicating without making further inquiry of other companies such as Facebook, because almost all online communication is encrypted. If a serious crime is involved—the Minister listed a range of serious crimes that the Bill is intended to cover, including child sexual exploitation and terrorism—the security services, which do not need internet connection records, are duty bound to assist the police with their inquiries. We therefore need some convincing that internet connection records are both necessary and proportionate.
There are other issues. We believe that the double lock should be only a single lock in the case of law enforcement warrants which need go nowhere near a Secretary of State if there is no political sensitivity, and that there should be a real double lock where there is political sensitivity, not just the application of judicial review principles to the decision of the Secretary of State. How can there be a judicial review process where only one side of the case is presented to the judicial commissioner? Equipment interference is potentially more intrusive than interception and yet law enforcement equipment interference warrants go nowhere near a Secretary of State under the Bill as drafted, whereas security services equipment interference warrants require a Secretary of State’s signature.
The oversight arrangements have a few wrinkles as well. How are we supposed to have faith in the independence of judicial commissioners appointed by the Prime Minister—not necessarily the current Prime Minister—including the Investigatory Powers Commissioner being appointed by the Prime Minister? How can the same body authorise warrants and then audit their issue?
Not only do we support many aspects of this Bill, but the Liberal Democrats when in government called for such a Bill. However, aspects of the Bill cause us grave concern and the Government and law enforcement agencies have failed to convince us of their necessity and proportionality. The “request filter”, for example, conjures up the spectre of a virtual national database, where government can bring together every piece of available personal data held on an individual into one place. In addition, technical capability notices and national security notices have the potential to inflict serious competitive disadvantage on UK suppliers.
Bulk collection of innocent people’s communications is highly controversial and requires the closest scrutiny. But there will not be a call for a blanket ban on bulk collection from this Bench no matter the cost in lives and loss of security; we will take a reasoned and practical approach to these issues. Nor will noble Lords hear the term “snoopers’ charter” from this Bench, other than to condemn it as an inaccurate cliché. There is much to commend the Bill, but there are serious issues that must be addressed.
Child Refugee Resettlement
Lord Paddick Excerpts(9 years, 10 months ago)
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Earl Howe
My Lords, I am most grateful to the noble Lord, Lord Rosser, who asked a number of questions. The Daily Telegraph picked up the No. 10 statement and misconstrued it. No. 10 said that we would proceed with this programme as quickly as possible and that by the end of the year we will have seen children arriving in this country. That does not mean to say that it will be 31 December before any child arrives.
It is difficult for me to define the estimated timetable because of the need, as specified by the amendment in the name of the noble Lord, Lord Dubs, to consult local authorities before we are in a position to say how many children can be accommodated. I can only assure the noble Lord that we need to take necessary but not undue time to do that, that we are already engaged with the French authorities to ensure that the vulnerable children who I know the noble Lord, Lord Dubs, wants us to prioritise are identified as quickly as possible, and that we will do the same in Greece and Italy.
I cannot, as the noble Lord will therefore surmise, be specific about whether we will admit 300 children before the start of the school year. The very nature of this announcement means that we must take the necessary time to consult others before bringing forward final proposals on how to implement. All I can say is that we will not only implement the letter of this amendment but its spirit, and we will do so enthusiastically and as speedily as we can. Naturally, as I have already emphasised, those children in Calais are likely to be the first candidates.
Lord Paddick (LD)
My Lords, Save the Children, following extensive research and consultation, concluded that if the UK took 3,000 unaccompanied asylum-seeking children from within Europe, that would be a fair and proportionate number. I accept, as the Minister said, that there has to be consultation with local authorities, but we also heard earlier this afternoon in this Chamber that charities and other mechanisms can be used to help find homes for these children. Can the Minister tell the House how many of these children the Government intend to take: the smallest number they can get away with or the UK’s fair share?
Earl Howe
It is not a question of the smallest number we can get away with. I hope that I have indicated that we are pursuing this amendment in its proper spirit. We have always been clear that we share the objective of identifying and protecting vulnerable refugee children wherever they are—our efforts to date have been designed to do just that—and we have heard many times about the measures that the Government have taken, particularly in the Middle East.
However, we were very clear that setting an arbitrary target, particularly one as high as 3,000, was the wrong approach. We cannot simply wade in and select some children whom we think would be better off in the UK, especially when some local authorities already care for very high numbers of unaccompanied asylum-seeking children—which in some cases is stretching services to breaking point. That is why we believe that the approach of the noble Lord, Lord Dubs, is the right one. We have to consult with local authorities before we can determine the number that we can accommodate, and we must observe the best-interests principle as well.
Armed Forces
Lord Paddick Excerpts(11 years, 9 months ago)
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Lord Paddick (LD)
My Lords, first, I thank my noble friend the Minister for the opportunity for this debate. I congratulate the noble and gallant Lord, Lord Richards of Herstmonceux, on his excellent maiden speech, typical of the high standards of contribution made by other noble and gallant Lords in your Lordships’ House. I have no personal experience in the Armed Forces. My father was a major in the Royal Tank Regiment during the Second World War and spent three years with the Eighth Army, driving the Germans across north Africa and up through Italy. I remember that one thing that the people with whom my father worked subsequently in civilian life said about him was that he was a man of integrity. Certainly, I have the highest regard for members of the Armed Forces and for ex-service personnel, many of whom I served alongside in the police service.
Interestingly, a young police officer who was previously in the Army said that he found a difference in culture between the Army and the police service. His experience was that in the Army, when things went wrong, people stood up and took responsibility and that it was the highest ranking officer who took that responsibility. Sadly, he found in the police service that responsibility was pushed down to the lowest possible level and that there was a tendency to cover things up. I shall not comment on whether that is correct, but that was certainly his experience.
My noble friend Lord Palmer of Childs Hill raised the issue of women in combat roles. Unlike the noble Baroness, Lady Dean of Thornton-le-Fylde, I am not going to leave it to another day to address that issue; I feel that I need to address it today. The noble Lord, Lord Dannatt, talked about women being involved in infantry and the armoured corps, going forward to face extreme violence. He said that he was asking the question whether that was an appropriate task for a woman. I would not dare to argue against the experience of the noble Lord, but I would also want to raise some questions. My noble friend Lord Burnett talked about the great courage of women over the years, but wondered whether in outright combat it would add to the risk, and how it was important to canvass the views of all members of the Armed Forces.
The parallels with women in the police service are worth exploring. It was only three years before I joined the police service that there was a separate women’s police department. They had specialist duties; they worked fewer hours and were not allowed to do night duty unless there were particular special circumstances. They mainly dealt with missing people, women prisoners and children. It was not until 1973 that women were integrated into policing—and then there were further barriers to be broken down.
It was not until 1977 that the first female traffic officer was appointed, 1979 before the first female dog handler was appointed, and even later still before female police officers became involved in riot training. Being involved in a riot situation, as I was in 1981 on the streets of Brixton, is one of the most physically demanding and, arguably, frightening, experiences that you can have as a police officer. You work in a very small team of six officers. However, the police service has decided to include women in that role and there have been no issues with women undertaking it.
Similar arguments were raised in the police service about women undertaking certain roles as were raised about women undertaking combat roles in the armed services. I can think of any number of male police officers who would be very little use to me if I was a police officer policing a brawl in a public house. However, I can think of many female police officers who I would be very glad to see in that situation not just because they might be a calming influence but because they are physically stronger and far more capable of dealing with that situation than many of the male officers I can think of.
I remember talking to a male officer from a flying squad who believed that women should never be allowed to be part of a flying squad because he felt that in a close combat situation involving armed criminals he might be distracted as he would want to look after his female colleagues, and therefore would not concentrate on tackling those criminals. I believe that mindset is from a bygone age and should be condemned for that reason.
Many female officers who carry arms are just as capable as their male colleagues. Indeed, some of them are better shots and, arguably, psychologically sounder than some of their male colleagues. In case noble Lords are concerned that I am talking about a very different situation, I should add that police firearms officers are trained to kill people. They are trained to aim at the biggest target area—the chest area—and are told that, if they take a shot at someone, the almost inevitable consequence is that they will be killed, yet some female officers are firearms officers and are used in these very stressful situations.
No doubt some noble Lords may argue that the situation I have described in the police force is very different from that which pertains in the armed services. However, men and women involved in the police service face life-threatening situations in front-line scenarios, some of which involve firearms. In my experience of more than 30 years in the police force, having women in those front-line scenarios has never to my knowledge caused any problems.
My father was a tank commander. What would he have thought about women in combat situations? He is no longer with us so I cannot ask him, but I believe that he would not have dismissed the idea simply on a point of principle.