Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Earl Howe

Monday 5th September 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, with great respect to my noble friends Lord Paddick and Lord Beith, I am with the Minister and the noble and learned Lord, Lord Hope, on this one. What my noble friends may have overlooked is the strength, distinction and effectiveness of the Investigatory Powers Commissioner. If there was any evidence to indicate that the commissioner, whether the present one or a future one, was likely to behave in a malign way and not reveal where improper action had taken place, then my noble friends’ concerns might have some validity. As has been said, though, the Bill is a world leader, not least in the protections that it contains. I commend to the House the provisions that have been placed in the Bill without these unnecessary amendments.

[Earl Howe]

My Lords, I shall briefly respond to the points that have been made. I am grateful to the noble Lord, Lord Beith, for amplifying the case that his noble friend made in introducing the amendment. In the end, we come back to the point that the noble Lord, Lord Carlile, has just articulated. We are talking here about the proper, legitimate use of the powers that the Bill contains, with robust oversight and mechanisms for redress built in, and the Investigatory Powers Commissioner is indeed an important safeguard in that context.

We are absolutely on board with the proposition that where an innocent person has been completely wrongly subject to the use of the investigatory powers—that is, where a serious error has occurred—there is no argument that that person should be informed. However, I submit that one cannot talk in the abstract about someone who has been “wrongly investigated”, which I think was the phrase used by the noble Lord, Lord Beith. You can be wrongly investigated if you are completely innocent, but you can also be wrongly investigated if there is perhaps not enough to pin on you as the culprit in a particular case but you might nevertheless, subject to further evidence, be implicated in a serious crime or a threat to national security. So we have to be clear about our terms in this context.

I come back to the fact that there are issues of principle and practice here that make this particular amendment unworkable. I also take on board the very good point made by the noble and learned Lord, Lord Hope, that it is not just an individual who could react to the news that they had been investigated in a way that would frustrate law enforcement agencies or intelligence services but a whole group of people. That in turn could affect national security, or indeed the conduct of criminals, much more widely.

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Earl Howe

Monday 11th July 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, if I may just follow on from what the noble Lord, Lord Rooker, has said, my view, having studied these issues for a very large number of years now, is that the Bill as drafted provides ample protections against invasions of privacy. Indeed, they have that kind of specificity that the courts readily understand. I am not opposed to the amendment proposed by the noble Lord, Lord Janvrin, but I respectfully say to my noble friends that the other amendments in this group, Amendments 1 and 2, add absolutely nothing of substance. I join with the noble Lord, Lord Rooker, in saying that I regard it as outrageous to equate our situation today with Nineteen Eighty-Four. The idea that we have a “Room 101” in this country and cameras in every bedroom—which is what it says in Nineteen Eighty-Four—is completely misleading. My charitable view is that it demonstrates that my noble friend has never read Nineteen Eighty-Four.

I say to all Members of this House, including my noble friends—forgive me for taking up time, but maybe the beginning is the time to say it—let us get this Committee stage done as quickly as we possibly can and not spend our time on large numbers of otiose amendments.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, the Committee will recall that privacy protections were quite rightly a significant topic of debate as the Investigatory Powers Bill passed through the other place. To make clear the duties in relation to privacy and the associated protections and safeguards, the Government introduced a new overarching privacy clause, Clause 2, and made amendments to Clause 1. Those clauses impose statutory duties on public authorities in relation to privacy and, as drafted, already clearly underscore the right to privacy and provide the necessary balance between that right and the powers necessary to keep us safe.

Amendment 1, moved by the noble Lord, Lord Paddick, seeks to add a new clause which would list the 10 tests proposed by the Independent Surveillance Review panel, convened by the Royal United Services Institute, or RUSI. At Second Reading in your Lordships’ House, the noble Lord, Lord Rooker, asked whether the Bill complies with those tests. My noble and learned friend Lord Keen confirmed that it does and undertook to set out precisely how it satisfies the RUSI tests. He then duly wrote to the noble Lord and has placed copies of the correspondence in the Library. Accordingly, and in particular in the light of the noble Lord’s helpful comments a minute ago, I hope noble Lords will accept that the Bill does indeed satisfy those tests. I recognise the desire of the noble Lord, Lord Paddick, to set the scene, as it were, for our forthcoming Committee debates, and while I agree with the principle and spirit of the proposed new clause, I do not consider that it adds anything to what the Bill already contains. I am confident that the Bill as it stands meets each test.

On the amendments proposed to Clause 1, it is worth re-emphasising that Clause 1 provides an overview of the Bill and sets out the duties relating to privacy and the robust protections applied to the use of investigatory powers. This provides the context for the revised Bill and the accompanying codes of practice, which make clear the strong privacy safeguards that apply to the use of the powers contained in the Bill. The Bill ensures that the security and intelligence agencies and law enforcement continue to have the powers they need to keep us safe—and no more. Amendment 2 is therefore not required; Clause 1 provides a suitable and sufficient overview of the Bill and the privacy protections, so the proposed new text is not merited.

I listened with care to the noble Lord, Lord Strasburger. The Government and law enforcement are clear about the value and importance of accessing internet connection records, in particular, to prevent and detect crime and keep the public safe. I did not hear the noble Lord refer to that imperative, although it has been recognised during the passage of the Bill, including by noble Lords at Second Reading. The Joint Committee that scrutinised the Bill considered this issue in detail and concluded that,

“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.

On Amendment 3, I begin by thanking again the Intelligence and Security Committee for its diligent and valuable contributions to the Bill. We very much welcome its ongoing input to this debate. As I am sure the Committee will be aware, in its report on the draft Bill published last year, the Intelligence and Security Committee of Parliament called for the inclusion in the Bill of an overarching clause dealing with privacy protections. That call was echoed by the Opposition and the Scottish National Party in Public Bill Committee. Following those discussions, the Government introduced the new comprehensive overarching privacy clause in the Bill, which was widely welcomed on Report in the other place.

I agree fully with the spirit of the ISC’s amendment but do not consider that it is needed. The new overarching privacy clause and amendments made to Clause 1 not only achieve what the ISC’s amendment seeks to achieve but go much further; rather than signalling the importance of privacy, the amended Part 1 now creates a statutory obligation to have regard to the public interest in privacy. The privacy clause serves to make clear what was always the case: privacy is at the heart of this vital piece of legislation. Therefore, with great respect to the noble Lord, Lord Janvrin, I cannot see that his amendment, well-intentioned as it is, adds value to what is already in the text.

I hope these remarks are helpful and that, while doubtless the noble Lord, Lord Paddick, will reserve the right to return to individual issues, he will nevertheless be content to withdraw his amendments at this stage.

Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Earl Howe

Monday 11th July 2016 Lords Chamber

[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—

Counter-Daesh: Quarterly Update

Debate between Lord Carlile of Berriew and Earl Howe

Tuesday 24th May 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, would the noble Earl add to his plaudits those non-military government officials who have been working in parallel with the military? In particular, in relation to Prevent, which he has just mentioned, would he confirm for example that RICU, the Research Information and Communications Unit of the Home Office, has taken down many thousands of violent Islamist and other extremist sites? Would he also confirm that the balance of the propaganda battle is now against Daesh and in favour of our authorities?

[Earl Howe]

I agree completely with the noble Lord, Lord Carlile. Since December 2013, 101,000 pieces of unlawful terrorist material have been taken down from the internet. That brings the overall total to 120,000 since February 2010, when the police Counter Terrorism Internet Referral Unit was set up. The unit makes 100 referrals a day related to Syria.

National Security Strategy and Strategic Defence and Security Review 2015

Debate between Lord Carlile of Berriew and Earl Howe

Monday 23rd November 2015 Lords Chamber

[Earl Howe]

The implication behind my noble friend’s question is that it is the actions of the West that have caused the migration crisis and the suffering in Syria. I respectfully disagree with him on that. It is Mr Assad himself who is the prime cause of the suffering in his country and the migration crisis. It is Mr Assad who has created the vacuum that ISIL has, unfortunately, filled very capably.

As regards the Motion that may come to the House of Commons on Syria, I have not seen a draft of it, but the discussions in government involve a Motion which would focus on ISIL. It is very clear that the House of Commons two years ago rejected the proposal that we should be involved in a war against Mr Assad. I think the UN Security Council resolution also points us towards a very clear and focused campaign to eradicate ISIL, which is a clear and present danger not just to us but to many countries around the world.

[Lord Carlile of Berriew (LD)]

My Lords—

--- Later in debate ---

[Earl Howe]

I think we must all be mindful of that precept. I hope we have been mindful of it in this document. It sets out what we see as the tier-one risks over the next five years. Clearly, were there to be such a major change in this country’s place in Europe or, indeed, such a major change in what this country consists of, there would be an obvious need to look again at some of the planning encapsulated here. However, I put it to the noble Lord that neither of the events that he has postulated invalidates the key strands of thinking in the SDSR set out here.

Terrorism is going to remain the most direct and immediate threat to our domestic security and overseas interests. Cyber threats to the UK are significant whether we are in or out of the EU. The risk of international military conflict is growing. Although it is unlikely there will be a direct military threat to the UK itself, there is a greater possibility, I put it to him, of international military crises that may draw us in. There is instability overseas. Since 2010, that has spread significantly to the south and the Middle East and northern Africa, as the noble Lord knows. The public health threats and the major natural hazards that the report identifies will still be there regardless. Therefore, I hope that the House will agree that we have looked in the round here not at a crystal ball but at an analysis of the threats that face us, analysing in turn what resources we need to address those threats.

[Lord Carlile of Berriew]

My Lords, I support the counterterrorism strategy contained in the document but can the Minister confirm that the document takes into account the events of Friday 13 November? Can the Minister also confirm that the strategy will include extensive sharing of intelligence techniques and information, subject, of course, to national security considerations so that, when attacks are threatened from abroad, there is the greatest possible chance of their being detected before they occur?

[Earl Howe]

I can give the noble Lord that assurance. We wish to see maximum collaboration with our friends and allies on the intelligence front. In the wake of the Paris attack, the question that we have asked ourselves is obvious: what are the capabilities that we need to counter such an event? We need the means to protect our transport systems, borders, critical national infrastructure and crowded places. We need systems that give us data in advance about people intending to come to this country so that they can be checked against our records. We need emergency services to respond to such incidents were they, God forbid, to occur. We need Armed Forces who are ready to provide support at very short notice in the event of a terrorist attack. Those are the questions we have asked ourselves over the past few months. The answers are contained in the report and I hope they will be reassuring to the House.