Earl Howe
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(7 years, 9 months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining the purpose of this group of amendments. I am particularly glad that Amendment 5 gives us the opportunity to look carefully at the intention of subsection (1) in the privacy clause. Perhaps I could just clarify.
Clause 2(1) lists in some detail the functions that a public authority may discharge under the Bill that may result in an interference with an individual’s privacy or impose an obligation on a telecommunications operator. The clause as drafted makes clear that, when taking such a decision, a public authority—including the Secretary of State and the judicial commissioner—must have regard to the principles set out at Clause 2(2).
The effect of the clause is perhaps not far removed from the intention of the amendment, but I would argue that the current drafting has the benefit of providing clarity. I was grateful for the complimentary remarks about the clarity of the drafting of the Bill overall that the noble Baroness was kind enough to make. The drafting of this part of the clause makes clear that the privacy clause bites in every situation in which a public authority takes a decision or action to which privacy considerations are relevant. I hope that those comments will encourage the noble Baroness to withdraw the amendment.
I am sympathetic to the spirit behind Amendments 6 and 8, which seek to prohibit the authorisation of powers in the Bill if less intrusive means are available. I hope I can provide some comfort to the noble Baroness and the noble Lord, Lord Carlile, by directing them towards the statutory codes of practice which we have published in draft alongside the Bill for the Committee to consider. For example, paragraph 4.7 of the draft interception code of practice states:
“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.
The codes will be submitted to Parliament for approval, and a failure to abide by them will be considered a breach by the Investigatory Powers Commissioner. I hope that that reassurance provides enough ammunition for the noble Baroness to withdraw her amendment.
Lord Carlile of Berriew
I do not want to prolong the debate, but does the Minister not think that it might be preferable to put these words in the Bill rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty.
Earl Howe
I am grateful to the noble Lord for seeding that thought in my mind and I am glad to take it away and consider it between now and Report.
Amendment 7 also relates to Clause 2, which provides a statutory requirement that public authorities must consider all three of the privacy duties listed in subsection (2). It is not an exclusive list—there are other important principles that public authorities will have regard to—but it does make clear the principles that sit at the heart of this Bill and that underpin the exercise of functions under the Bill. And it is of course the case that the judicial commissioner will look to see whether these principles have been satisfied—when, for example, he or she reviews a Secretary of State’s decision to issue a warrant.
The noble Baroness expressed some concern about the phrase “have regard to”. In bringing forward the privacy clause, the Government responded to concerns raised by the Intelligence and Security Committee of Parliament as well as by the Opposition and the Scottish National Party in the other place. The language of “have regard to” is drawn from amendments tabled by the Opposition and the SNP in Committee. It reflects the language of Clause 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which was held up by those parties in Committee as an exemplar of how such a clause might operate. That is the basis on which we have included that particular form of words. In short, while I am sympathetic to the concern raised in this area—
Lord Lester of Herne Hill
I am grateful to the noble Earl. Those precedents do not amount to what is really needed, which is full compliance with Article 8 of the convention and the Human Rights Act. In my opinion—it is no more than my opinion—the words do not satisfy that, whatever the precedents relied on may be in amendments tabled in other Bills. It is no use saying “have regard to”; it is necessary to ensure that what is in A, B and C happens in practice. “Have regard to” is rubbery and illusive and will not pass muster under the Human Rights Act or the convention, in my opinion.
Viscount Hailsham (Con)
May I press my noble friend more on this point? With regard to subsection (3), there is a test of relevance. Subject to the test of relevance, it seems to me that, under subsection (4), the public authority can in effect have regard to any consideration it deems fit. Is that correct?
Earl Howe
As I have said, it is not intended to be an exclusive list. There are, of course, factors that may well be relevant and a public authority will wish to have regard to that are not included in the list. We did not intend the list to be exclusive. However, I am grateful to my noble friend and, once again, I will take advice on whether the wording quite fits the intent.
The House has a proud tradition of respect for human rights. The Human Rights Act is referred to in Clauses 1 and 2. It is the Government’s view that those references make it absolutely explicit that the obligations and protections in that Act apply to the exercise of functions under the Bill. While I am sympathetic to the intention behind Amendments 9 and 13 and I listened with care to the noble Lord, Lord Lester, as I always do, I do not think the amendments are necessary. Public bodies are already required to act in accordance with the Human Rights Act 1998. Our position is aligned. The Human Rights Act is not an optional consideration when exercising the investigatory powers in the Bill. The Government consider it unnecessary to restate the position for that reason. Furthermore, we do not want to cast doubt in other places in statute where it is not restated, as that may serve actually to undermine the strong standing of the Act and the rights contained within it.
Turning to Amendment 10, I do not believe there is a divergence in principle here; this is merely a matter of drafting. The clause sets out that a public authority must have regard to certain considerations, and that duty is subject to the need to have regard to other considerations that exist elsewhere in the law. It would be superfluous to state that public authorities must have regard to things that they already must have regard to. For example, a warrant can be issued only where it is necessary and proportionate, and this is explicit in the relevant parts of the Bill. Equally, the need to comply with the Human Rights Act is encompassed within that Act: it does not need to be restated here. I hope that provides some reassurance and that the noble Baroness will, on that basis, choose not to press this amendment.
On Amendment 11, Clause 2(2) sets out the principles that public authorities must have regard to when exercising certain functions under the Bill. It is not an exhaustive list, and subsection (4) sets out some of the other factors that may be taken into consideration. Again, I emphasise that subsection (4) does not contain an exhaustive list. There will be other principles outside this list that public authorities will need to have regard to, and we should not cast doubt over that, as the amendment would.
My noble friend Lord Hailsham questioned the use of the word “may” as opposed to “must”. The use of “may” in subsection (4) should not be taken to imply that it is optional for public authorities to have regard to the principles listed in that subsection. The law requires, for example, that public authorities must always comply with their obligations under the Human Rights Act.
There are of course some factors listed at subsection (4) that will not be relevant in all circumstances: for example, it may not be meaningful, when modifying a national security warrant, to have regard to the public interest in the prevention of serious crime. But, to be clear, the use of the word “may” does not absolve public authorities from their wider obligations under this Bill or any other legislation.
I turn now to Amendment 12. Economic well-being is of course one of the statutory purposes of the security and intelligence agencies, and the reference to it in Clause 2 is intended to reflect that—nothing more. When powers under the Bill are authorised in the interests of the economic well-being of the United Kingdom, there must be a link to national security. The language at Clause 2 does not alter or undermine that; it simply reflects the statutory purposes of the agencies. As drafted, Clause 2 provides clarity and consistency with existing legislation. Given the specific limitations elsewhere in the Bill, any amendment to Clause 2 along the proposed lines is unnecessary.
Amendment 14 is the final one in this group. Your Lordships’ Committee is in no doubt of the importance of the office of the Independent Reviewer of Terrorism Legislation. David Anderson QC, who has occupied the role since February 2011 and whom both my right honourable friend the Home Secretary and I hold in the highest regard, does an excellent job of reviewing key counterterrorism statutes. His independent oversight and recommendations help us to ensure that our counterterrorism legislation is fair, effective and proportionate, and that it strikes an appropriate balance in the face of the very real and serious threat we face from terrorism.
Following the passage of the Counter-Terrorism and Security Act 2015, 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 recommended in his July 2014 annual report.
Lord Lester of Herne Hill
I promise not to speak again on any amendments until we reach those covering legal professional privilege, as I do not intend to be even more of a human rights bore than I am at the moment. However, before the Minister sits down, since he has the great advantage of not being a lawyer, may I explain why the Government need to think again about the language that is being used currently?
The problem is that any mismatch between the wording of the Bill and the convention or the Human Rights Act would lead, necessarily, to a legal challenge, which would go probably all the way to the Supreme Court. At the end of the day, the court will say that it cannot do much about it, because the Act is clear, but that it will give a declaration of incompatibility. That will then cause the Government of the day to have to decide what to do about the language—whether they amend it or let it go to Strasbourg.
I want to avoid all that. Every time I see something in the Bill that seems to me to be a mismatch—for example the part which suggests that there are other unspecified relevant circumstances, which seems to violate the principle of legal certainty—I think, “Oh dear, this is going to lead to litigation and to a challenge”. I am begging the Government to make absolutely sure that the language of the Bill as it leaves this House cannot be challenged as being a mismatch with the European convention and the Human Rights Act.
The problem with the Human Rights Act is that it allows those challenges, quite rightly, to be made, along with declarations of incompatibility. That is why I really hope, when the Bill comes to Report, we can have language which, if not identical to these amendments, will achieve that objective.
Earl Howe
My Lords, I am grateful to the noble Lord for expressing his expert opinion so clearly. I can undertake only to study carefully what he has said between now and Report. Clearly, the Bill has been drafted by expert hands, but I am the first to say that there is no monopoly of wisdom on the Government’s side, and I am sure we need to taker full account of what he said.
Baroness Hamwee
My Lords, one of the things that we are saying is that because the Bill has a mixed heritage, it is perhaps not as clear as it could be and does not have the benefit of the expert work to which my noble friend referred. I am clearly going to have to read very carefully what has been said, but I want to make a few comments now.
First, I am grateful to the noble Viscount, but I do not think what he was saying was quite as the noble Earl put it with regard to the word “may”. We need to come back both to the “may” and the “other considerations” in particular and to the relationship between the subsections. That fact that the list in subsection (4) is not exclusive makes the matter even more difficult.
I obviously do not want to go over all the ground again. With regard to the privacy and civil liberties board, it was of course a construct—a compromise—but my noble friend Lord Strasburger’s point about somebody having the responsibility to make sure that privacy and civil liberties are right at the top, immovably in the agendas that the Government may have, is an important one. I, for one, would welcome something more than was in the Act.
I agree that listing where the duty bites does help clarity and transparency, but I had a difficulty in being completely certain that it bites on everything that I think it should; the filter in Clause 63 was my example. If the filter is part of granting, approving—obviously not—or cancelling an authorisation, that is fine, but it should be clear. I am afraid I am not hugely persuaded by a code of practice, since it is not primary legislation. In fact, I think the Minister said that we should have regard to it. If it provides that these matters are absolute, rather than discretionary, then the codes of practice will not be consistent with the primary legislation, and that will be a bad thing.
I come back to whether this clause has been invented here, or wherever it has been invented. I will offer to supply the hot towels for everybody—I might even provide cake—but this is a provision that would benefit from further discussion. I certainly do not offer not to bring it back on Report—I might if we can get to somewhere that satisfies all of those who are clearly concerned before then—but for the moment, I beg leave to withdraw the amendment.
Baroness Hayter of Kentish Town (Lab)
My Lords, I wish to speak briefly to Amendment 68, which is in my name and that of my noble friend Lord Rosser. Clause 45(1)(a) permits interception by a Revenue & Customs officer under Section 105 of the Postal Services Act 2000. That is the provision that contains the power to open postal items, so that is clear enough. However, Clause 45(1)(b) permits interceptions by, again, a Revenue & Customs officer under the same Section 105 “and another enactment”. It is the phrase “and another enactment” that I am not quite clear about. If Section 105 is sufficient, why add the words “and another enactment”? If it calls on some other law in order to legitimise this activity, should that not be detailed in the clause? Amendment 68 therefore proposes deleting the second arm—the “and another enactment” bit—unless the Minister can make some sense of it for me.
Earl Howe
My Lords, let me turn first to Amendment 19. Clause 4 defines interception. It provides greater clarity in relation to the activity that constitutes interception than is currently the case under the Regulation of Investigatory Powers Act 2000—RIPA—and responds to calls from a number of quarters that such clarity is necessary. “Relevant time” is defined in Clause 4(4) to make clear that the interception offence can be committed at any time while the communication is being transmitted, or while the communication is being stored. Under RIPA, it is an offence to intercept a communication in the course of its transmission by means of a public telecommunications system. There had in the past been some uncertainty as to the scope of the offence; for example, whether a voicemail message stored by a telecommunications system was still in the course of its transmission, and therefore whether to access it without lawful authority would engage the offence of unlawful interception. The revised definition of interception in Clause 4 is intended to make clear that messages stored in or by the telecommunications system are caught within the definition of interception, and therefore cannot be accessed without lawful authority. This puts beyond doubt, for example, that so-called phone hacking constitutes unlawful interception.
If the Bill were amended in the manner suggested, it would, I believe, undermine the strong safeguards that the Bill provides for the protection of private communications. It would cast doubt over whether access to stored communications without lawful authority would engage the criminal offence, and it would be less clear when a public authority required a warrant to intercept communications.
Amendment 66 is not necessary and would be very difficult to implement in practice. Clause 42 simply makes clear that where both parties to a communication have consented to the communication being made available to a third party, this does not constitute unlawful interception. The Bill already requires that consent must be given in such instances for it to be lawful. On the example of a telephone call, plainly it would not be practical to write to an individual seeking their consent before continuing with that call. I hope that the noble Lord will not press that amendment.
I turn to Amendment 68. Clause 45 relates to the power of HM Revenue & Customs to inspect postal items to ensure that contraband or illegal items are not being imported or exported from the country. This clause is vital in countering terrorism and preventing and detecting serious and organised crime. RIPA was amended by the Policing and Crime Act 2009 to put beyond doubt that the protections from interception afforded to postal communications in RIPA did not restrict this vital Revenue & Customs power to check international postal traffic. This clause simply maintains this position. I hope that I have been able to provide some reassurance as to why this provision is necessary.
Viscount Hailsham
Could I press my noble friend a little more on Amendment 66? Of course I understand that there will be circumstances when written consent cannot be made, but there will be many other circumstances when it can be obtained. I note, for example, that it involves the consent of both parties. That suggests that it happens some time before the interception takes place. I should have thought it perfectly possible to have a proviso that the consent should in general be forthcoming and evidenced in writing, but that there should be a disapplication in urgent situations. In dealing with that matter, can my noble friend help me as to why we have subsection (2) as well as subsection (1) of Clause 42?
Earl Howe
My Lords, I am very sorry to have to disagree with my noble friend about the consent in writing, which would be likely to result in completely impractical situations. It is not clear what real advantage would be gained. In any case, most of the time, prior consent in writing would simply not be an option. Taking the example again of a telephone call, it is difficult to see how the normal transaction of business would not be completely impeded if we insisted on this provision.
I shall endeavour to respond to my noble friend about his question on subsections (1) and (2). I do not have a ready interpretation to give him now but, if I can during the proceedings, I shall do so.
Lord Grabiner (Non-Afl)
The language is pretty clear. Subsection (1) of Clause 42 suggests that consent of both is required, while subsection (2) refers to the consent of the recipient alone.
Baroness Hayter of Kentish Town
Could the Minister write on the amendment to Clause 45(1)? I was absolutely not suggesting by the amendment that the right would be lost for Customs & Revenue to intervene—it was about whether it needed to be under both Section 105 and, as it says,
“that section and another enactment”.
It was the clarity of the words “and another enactment” that I was asking about. I would be quite content to have a letter to clarify that point.
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
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.
Baroness Hayter of Kentish Town
My Lords, I shall speak briefly about Amendment 148 in this group, which stands in my name and that of my noble friend Lord Rosser. It deals with what protections there should be for any journalist’s material collected as a result of any of these powers. In the case of material obtained that falls under normal rules of legal privilege, the Bill lays down the care with which such material should be treated under professional privilege. It is particularly important that the material is secured very safely, should anything from a journalist be held. Similarly for lawyers, material should secured very safely, and be seen by the fewest number of people possible. Anything that is not subsequently used in the investigation should be destroyed or returned and certainly not kept. That sort of safeguard should cover any journalist’s material, either under the Bill as it stands or as amended under Amendment 25.
The case has been made as to why it is so important to protect journalists’ sources. It encourages people to come forward to give what might be really important information to an independent source, who can then verify and publish it without the source’s identity being known. Sometimes, however, I have sympathy with people’s identity being known, when they are, for example, selling secrets they should not be to newspapers for large amounts of money. I am sorry that the noble Lord, Lord Black, was not here when we dealt with Amendment 18, as a number of newspapers have failed to work to implement Leveson. In discussion of what might constitute a journalist, perhaps anyone who works for a Leveson-compliant organisation, would be a good way of defining them. This might be the encouragement needed to bring that into being.
Guaranteeing anonymity has and always will be vital to the journalists’ profession, for the sake of those who go to them but also, as has just been mentioned, for the safety of journalists, literally hundreds of whom are killed around the world in the course of their duty. There can be little doubt that should some undesirable person or organisation think that a journalist who they have briefed or who has photographed or filmed them might hand that material over to the state, then that journalist becomes at risk. It is also essential that the use of powers that may affect journalists’ sources of information should be thought of being used only when there are exceptional and compelling reasons.
There will be times when journalists’ material gets scooped up, which is when it needs to be protected. More seriously, where journalists are being asked to hand over film or photographs, we share the desire that they should be fully protected, as outlined by the noble Viscount, Lord Colville. We hope that the Government have continued their discussion with the parties involved and we look forward to hearing an update.
Earl Howe
My Lords, this Government have been clear on their continuing commitment to protecting the free press and freedom of expression in this country. In the Commons and at Second Reading, we committed to looking at this issue further and ensuring that the balance of such protections was exactly right. I thank noble Lords for tabling this amendment and giving us the opportunity to continue this important debate. The Government have listened carefully to the debate on these issues so far, and have continued to discuss them with media organisations. I have met journalists and their representatives for a very informative discussion. This engagement has proved extremely useful all round, not least in resolving misunderstandings about the relevant safeguards provided in existing legislation.
In response, the Government tabled amendments in the House of Commons strengthening the protections in the Bill for journalists’ sources. The amendment passed on Report places an extremely strong test in the Bill where a public authority seeks to use communications data to identify or confirm a journalist’s source. This means that a judicial commissioner—that is, a serving or former high court judge—must first consider the public interest in protecting a source of journalistic information and then be satisfied that there is another, overriding public interest before approving an application.
In addition, the Government introduced a new overarching privacy clause which makes it explicit that public authorities exercising functions under the Bill must have regard, for instance, to whether what is sought to be achieved by any authorisation may reasonably be achieved by other less intrusive means. It also requires persons exercising functions under the Bill, including authorising police officers and judicial commissioners, to have regard to the public interest in the protection of privacy as well as numerous other principles that underpin the legislation. These amendments clearly spell out in the Bill some of the protections that journalists seek.
Of course, the Bill proceeds from the widely accepted position, endorsed by the Joint Committee on Human Rights, that,
“review by a judge or other independent and impartial decision-making body”,
is the most significant safeguard required to protect the confidentiality of a journalist’s source. The Bill introduces that safeguard across all warrants. It specifically provides for judicial approval of any authorisation to acquire communications data for the purpose of identifying or confirming a journalist’s source.
Amendment 25 would apply a standard set of protections across the different powers provided for in the Bill. While I commend the intention to strengthen protections, the Government do not consider this blanket approach to be the right one. The powers in the Bill are not the same; they vary both in the material that can be acquired and the level of intrusion that such an acquisition represents. That is why the Bill ensures that additional protections are applied where they are most appropriate, providing for judicial authorisation of the most intrusive powers and mandating the use of less intrusive powers where that is possible. Indeed, journalists have it made clear to me that, uniquely, they consider communications data to be at least as intrusive as content, since they allow a source to be identified. That is exactly why the Government have, also uniquely, provided for judicial authorisation of communications data requests to identify a journalist’s source.
This Government agree—indeed they forcefully advocate—that confidential journalistic material and journalists’ interaction with their sources must be protected, but that does not mean that a journalist should receive blanket protection from legitimate investigation simply because of their chosen profession. The Bill ensures that protections are applied where they are required, that those who commit a crime or pose a threat to national security can be investigated, regardless of their chosen profession, and it does so in a way which is compatible with all our ECHR obligations. I should be clear that the Bill already requires any authorisation to relate to a legitimate ECHR Article 10 aim, as part of the amendment demands.
Extending protections to all,
“activities relating to journalistic information”,
as the amendment seeks to do, brings real practical implications which the Government do not consider appropriate. For example, it is clear that the content of an interview conducted in public should not be subject to the same stringent protections as a dossier of private, undisclosed material passed by a source and held in confidence. That would render meaningless those protections which are appropriately applied to confidential journalistic material.
In addition, the amendment would mean that a journalist suspected of committing a crime could be investigated only in an emergency situation where immediate action was necessary and an order to use the powers in the Bill was obtained from a judge—that is, if the crime had already taken place and there was no immediate danger, the powers could not be used to bring that individual to justice, nor could they be used to prove that individual’s innocence. I suggest that that is the wrong approach, and that is without considering the question, which even the National Union of Journalists has admitted is extremely difficult, of defining who is and who is not a journalist in the digital age.
Finally, on the question of the key decision-maker in this process, the Bill upholds the important principle of judicial involvement. A number of bodies representing the journalist profession have argued that the only way to prevent the powers in the Bill being misused is to allow a journalist to be involved in the judicial commissioner’s decision. The Government do not agree.
Of course, our security and intelligence and law enforcement agencies will in very limited circumstances have a legitimate need to investigate a journalist or their source. Where a journalist is suspected of a crime, it is clearly not appropriate that they should be alerted to the investigation, but there is a fundamental consideration here: these powers are by their very nature covert. Requiring prior notification would undoubtedly undermine the key purpose of the powers, whose use in relation to journalists, we should be clear, is already extremely limited.
Instead, the Bill provides for a robust regime to govern the use of the powers, with a clear role for judicial commissioners in authorising and overseeing their use by public authorities. It also sets out the offences that apply in the event that any of the powers are misused and provides for a world-leading oversight regime, led again by senior and independent judicial figures. The Bill takes a reasoned, balanced approach—the right approach—to protecting the important role of the media in a democratic society. It applies protection where it is needed without unduly hampering our law enforcement and security and intelligence agencies when they truly require the use of the powers. It is on that basis that I invite the noble Viscount to withdraw his amendment.
The noble Lord, Lord Strasburger, asked about protection for whistleblowers. The Joint Committee that was convened to scrutinise the draft Bill recommended that it make it clear that members of the intelligence services can raise concerns about the misuse of investigatory powers with the Investigatory Powers Commissioner without being at risk of prosecution for breaching the Official Secrets Act—that was recommendation 61. The Government included Clause 203—now Clause 212—on the Bill’s introduction to the House of Commons to give effect to the committee’s recommendation. The Bill will allow an individual to provide information on a voluntary basis to the Investigatory Powers Commissioner without that individual committing a criminal offence or incurring civil liability. Of course, any use of these investigatory powers must be for one of the purposes specified in the Bill, such as the prevention or detection of a crime or in the interests of national security. They cannot be used simply to protect any organisation’s reputation.
Amendment 148 would apply protections designed to provide the appropriate safeguards for a specific power to entirely different circumstances. “Exceptional and compelling” is a phrase which relates to a very specific set of circumstances: those in which the Secretary of State is satisfied, and the judicial commissioner agrees, that it is necessary to issue a warrant where the intention is to acquire legally privileged communications. Such circumstances will arise only in a very restricted range of cases, such as where there is a threat to life or limb or in the interests of national security and the interception is reasonably regarded as likely to yield intelligence necessary to counter the threat.
The test which the Government introduced into Clause 73 in the other place relates to the acquiring of communications data to identify or confirm a journalist’s source. It requires the judicial commissioner to have regard to the public interest in protecting journalists’ sources and then to consider, as I explained earlier, that there is another overriding public interest before granting the request. I suggest that that is the appropriate test because it reflects the requirements of freedom of expression under Article 10 of the European Convention on Human Rights.
This amendment also seeks to apply the arrangements provided for in relation to material acquired under an interception warrant to the handling, retention, use and destruction of communications data. While I commend the intention of this element of the amendment, it is unnecessary as equivalent safeguards are already to be found in chapter 11 of the Draft Communications Data Code of Practice. This chapter provides significant detail on the handling arrangements for communications data, placing stringent safeguards around how it is held: for instance, restrictions on who may access the data and for what purposes; when the data may be disclosed; and that when it is no longer necessary or proportionate to hold the data, it must be destroyed. These are strong safeguards which provide the appropriate protections for data.
As I noted earlier, the Bill takes what I would contend to be a reasoned and balanced approach—the right approach—to protecting the important role of the media in our society. I hope that, on that basis, the noble Baroness will not press her amendment.
Lord Strasburger
Perhaps I may ask the Minister three questions. Do the Government have any problems with the way that PACE currently protects journalists’ sources? I ask this because many of the criticisms he made of this amendment with respect to potential tipping off would surely also apply to PACE. The second question is this: do the Government feel that this Bill protects the communications data of journalists as well as PACE currently does? Thirdly, what special protections do the Government say the Bill gives journalists with respect to equipment interference?
Earl Howe
My Lords, the Government are clear that the regime provided for in the Bill is not inferior to the provisions of PACE. It requires that applications be made to a court for a production order on notice to the holder of the material. In the case of communications data the whole of the material is a telecommunications provider, not a journalist. We are therefore clear that nothing in the Bill enables the investigatory authorities to circumvent the protections for journalists’ sources contained in PACE. Indeed, in 2015 the Interception of Communications Commissioner conducted a detailed investigation into the allegations that public authorities had utilised RIPA to avoid the use of PACE and clearly rejected the claim. The amendments that we have made to the Bill combined with the other safeguards for acquiring communications data mean that the relevant considerations laid out in Schedule 1 to PACE are addressed on the face of the Bill.
Viscount Colville of Culross
My Lords, I thank noble Lords across the Committee for their support for this amendment. I am particularly grateful to the noble Baroness, Lady Hayter, for pointing out the dangers to journalists that are possibly posed by this Bill and how the amendment might be able to ameliorate that situation. I am also grateful to the noble Lord, Lord Murphy, for reminding us of the recommendations of his committee. There was a worry that there was less protection for journalists under the Bill than had existed under PACE. I know that the Minister has answered the point, but obviously there is widespread concern that that is the case.
I ask the Minister to listen to the noble Lord, Lord Paddick, who after all was a senior policeman. He himself pointed out that when it comes to looking at serious crime, particularly the worries over violence in demonstrations, it is all about keeping the balance and making sure that journalists do not become a target for violence and that we protect them. I thank the noble Lord, Lord Strasburger, for pointing out the importance of keeping the anonymity of whistleblowers. Of course the whistleblower Act protects whistleblowers, but only once they have been named. What we are trying to do is to maintain their anonymity.
I thank the Minister for the discussions that we have had in the run-up to the Bill, but I ask him to look once again at the protections in place for journalists under different powers. I do not think, as he said, that we are asking for blank protections for journalists. We are asking for them to be carefully controlled with different thresholds and controls to exist in different powers. I am also sorry that the Government do not feel the need to notify journalists that a warrant is going to be issued. It would be extremely helpful and it is important in making sure that the process works better.
I hope that the Minister will at least continue discussions with us between now and Report stage about how we can extend the protections for the sources of journalistic material. For the moment, however, I beg leave to withdraw the amendment.