Investigatory Powers Bill

Lord Paddick Excerpts

Monday 5th September 2016 Lords Chamber

Moved by

[Lord Paddick]

191: After Clause 206, insert the following new Clause—
“Notification by the Investigatory Powers Commissioner
(1) The Investigatory Powers Commissioner is to notify the subject or subjects of the use of the investigatory functions mentioned in section 205(1) to (3), including—(a) the interception or examination of communications,(b) the retention, accessing or examination of communications data or secondary data,(c) equipment interference,(d) access or examination of data retrieved from a bulk personal dataset,(e) covert human intelligence sources,(f) entry or interference with property.(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.(3) The notification under subsection (1) must be sent by writing within 30 days of the completion of the relevant conduct or cancellation of the authorisation or warrant. (4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of—(a) the conduct that has taken place,(b) the provisions under which the conduct has taken place, and(c) any known errors that took place within the course of the conduct.?(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security operation or investigation.(6) The Investigatory Powers Commissioner must consult the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”

[Lord Paddick (LD)]

My Lords, Amendment 191 is in my name and that of my noble friend Lady Hamwee. It would insert a new clause after Clause 206 requiring the Investigatory Powers Commissioner to notify those who have been subject to the powers contained within the Bill, as set out in Clause 205(1) to 205(3), once the operation against them is complete or the warrant is cancelled. There are various conditions for notification and the ability to postpone notification in certain circumstances following discussion with the person to whom the warrant is addressed.

Citizens are entitled to the protection of the law but, as the Bill is drafted, it is impossible to challenge the Government and the use of state instruments of interference in people’s private lives if they have no idea that they have been the subject of surveillance. To quote the briefing provided by Liberty, if a person’s Article 8 rights—to a private and family life—and other Human Rights Act rights have been engaged and potentially violated,

“in order to have access to an effective remedy, as required under human rights law, the person must first be made aware of a possible breach”.

Cases in 1978 and 2006 before the European Court of Human Rights upheld this view. In 2007, the court went further and said that,

“as soon as notification can be made without jeopardising the purpose of the surveillance after its termination, information should be provided to the persons concerned”.

Post-event notification is already in place in some form in Germany, Belgium and the state of California in the United States of America.

There must of course be safeguards and these are built into the amendment, allowing the Investigatory Powers Commissioner to postpone notification if he assesses that it might defeat the purposes of an ongoing serious crime investigation or national security operation, after consultation with the body that issued the warrant. The right honourable Theresa May, the Prime Minister, repeatedly stated when she was Home Secretary that this is world-leading legislation. If that is the case, let us be radical and implement this amendment. I beg to move.

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

My Lords, as the noble Lord explained, Amendment 191 would insert a new clause that would see subjects of the lawful and proper use of investigatory powers notified of that fact.

There are a number of problems with that proposition, both in principle and from a practical perspective. First, let me be clear that I agree with the principle that where a serious error has occurred in the use of the investigatory powers, the commissioner should be able to inform a person affected. Clause 198(1) makes this absolutely clear.

However, I do not agree with the principle that, as a matter of course, anyone subject to the lawful use of an investigatory power must be notified, unless it would damage an ongoing serious crime or national security investigation. A principle of that kind would mean, for example, that we would need to notify suspected criminals and terrorists that they have been under investigation just because a specific ongoing investigation had stalled or, indeed, had concluded with evidence of wrongdoing but with insufficient evidence to bring a prosecution.

As noble Lords will know, suspected criminals and terrorists will often appear on the radar of the police and the security services at different times in the context of different investigations. It would clearly not be appropriate to inform them that investigatory powers had been used against them in a particular case as this could prompt them to change how they behave or communicate, which could hamper a future investigation. This is particularly important in relation to national security because this amendment would require the commissioner to make the subject of interest aware of,

“the conduct that has taken place”.

That would not just run contrary to the long-standing policy of successive Governments of neither confirming nor denying any specific activity by the security and intelligence agencies, but would essentially require the techniques the agencies use in specific cases to be made public. That would clearly assist terrorists in their operations, allowing them to stay one step ahead of the agencies.

Beyond the principled objections to this amendment, there would be numerous practical problems. It would not be practical, for example, for the commissioner to make everyone whose data were subject to a data retention notice aware of that fact. For example, he would have to require the relevant telecommunications operator to provide him with a list of all relevant customers, and it would have to inform him every time a new customer joined its service. It would not be difficult for criminals to use that process to identify services that they could use to avoid detection.

Equally, I suggest to the noble Lord that it would put unreasonable burdens on all public authorities covered by this Bill to require them constantly to need to make a case to the commissioner as to whether it would hamper national security or serious crime investigations if subjects were told that investigatory powers had been used against them. It would surely be better for the police to spend time and money on investigating criminals, rather than on determining whether individuals should be informed about perfectly lawful investigative activity.

Furthermore, in the context of bulk warrants under parts 6 and 7, the public authority or commissioner would need to examine all the data collected under the warrant to identify the individuals whose data have been collected. That would not only be impractical, but data would be looked at that otherwise there would have been no need to examine. This new clause would therefore actually lead to greater intrusions into privacy than would otherwise be necessary, which I am sure cannot be the intention.

I submit to the noble Lord that the proposed amendment is at best unnecessary and at worst threatens fatally to undermine the work of law enforcement and the security and intelligence agencies.

Let us be clear what the effect would be. It is not innocent, ordinary, law-abiding people who would be notified, because the agencies do not seek or obtain warrants against such people; it is suspected criminals and terrorist suspects. They would then change their behaviour, and we would have less chance of bringing them to justice. That point lies at the nub of the argument I have put to the noble Lord. I am sure that cannot be his intention, so I hope he will consider it the right thing to do to reflect on this point between now and Report, and withdraw the amendment at this stage.

--- Later in debate ---

[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.

[Lord Paddick]

I am grateful to the Minister and to other noble Lords who have contributed to this short debate. I was heartened when the Minister started to say that he could see in principle what the amendment was driving at and therefore the merit of it to that extent. He then gave a lot of practical reasons why it would not work in practice. I have to say that I found a lot of those unconvincing, particularly when you look at the wording of the amendment and the fact that:

“The Investigatory Powers Commissioner may postpone the notification … if the Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security operation or investigation”—

which would cover the point made by the noble and learned Lord, Lord Hope. Presumably the police and security services would know that this individual was part of a wider network and therefore would not inform that individual—at least, not at that stage.

So I think we are on to something here in principle, although I accept the practical difficulties that the Minister pointed out. We need to go back and rethink the amendment to address the practical problems that he highlighted and see whether we can allay his fears at Report. But, at this point, I beg leave to withdraw the amendment.

Amendment 191 withdrawn.