Investigatory Powers Bill

Lord Rooker Excerpts

Report: 2nd sitting (Hansard - part two): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Paddick]

My Lords, I shall also speak to Amendments 137B to 137F in my name and that of my noble friend Lady Hamwee. We return to the issue of informing innocent people when they have been subjected to targeted surveillance by law enforcement or the security and intelligence agencies. The European Court of Human Rights said in 2007:

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

When we raised the issue in Committee, the Minister raised a series of quite reasonable objections, which we have tried to address in this new amendment.

In Committee, the Minister said:

“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”.

Of course, we agree. We therefore restrict the notification requirement to targeted interception warrants, where a person’s communications are intercepted, and targeted examination warrants, where communications are acquired in bulk and a UK citizen’s communications are among those acquired in bulk and the security and intelligence agencies wish to examine those communications. The provisions would also apply where a targeted equipment interference warrant is used. This would ensure that only when the specific individual’s communications are intercepted or equipment interfered with would notification have to be considered.

In Committee, the Minister said 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”.

We have therefore written into the amendment that notification shall not be given if the person is suspected of being involved in terrorism-related or other criminal activity.

In Committee, the Minister said that,

“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”.

Of course, we agree. The amendment now states that notification shall not be given if it might prejudice any continuing or anticipated investigation concerning the subject of the surveillance or any other person.

The Minister said in Committee that our amendment,

“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”.

We do not agree. We hope that the number of occasions when completely innocent people are targeted will be small and the amendment now includes the provision that notice should not be given if the Investigatory Powers Commissioner determines that it is in the interests of national security, or the public interest in preventing or detecting serious crime, that it is not given. In most cases, this will be obvious and require no further justification from the public authorities.

The Minister in Committee further objected that notification 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”.—[Official Report, 5/9/16; col. 858.]

It has not been the long-standing policy of successive Governments to deny that the security services kept a record of the details of every phone call made in the UK until recently and it is not a reasonable argument simply to say, “That’s what we’ve always done”. However, we have taken on board the Minister’s other criticisms and included in the amendment that notification,

“shall include no details of the methods used or any other matter which might hinder any future investigation”.

Having, I believe, dealt with all the objections the Minister raised in Committee, I hope the Minister responding will reconsider whether post-event notification could, in the circumstances I have described, be allowed, and that the Government will accept the amendment.

Amendments 137B to 137E are related to Amendment 137A, to the extent that they seek to tighten up on error reporting. Amendment 137B deletes the phrase “the Commissioner considers that” from Clause 209(1), so that the commissioner must report a serious error whether or not they consider it so. Whether the error is serious should be an objective test, not a subjective consideration by the commissioner. Amendment 137C deletes the condition that,

“it is in the public interest for the person to be informed”.

Surely, if the error is serious it should be reported—or, to put it another way, surely it must always be in the public interest if the error is serious.

Amendment 137D would delete the provision stating that notification should be given only if the error has caused “significant” prejudice or harm to the person concerned, and adds wording so that the clause would state that they should be notified if the error,

“has caused or may cause prejudice or harm to the person concerned”.

The argument here has echoes of an amendment that the Government rejected earlier on Report—that asking a commissioner to make a decision on whether the prejudice or harm is significant muddies the waters.

Amendment 137E would delete Clause 209(9)(b), which defines a relevant error. There appears to us to be no need to describe in regulations the kind of error to which these provisions relate. We believe that the definition in Clause 209(9)(a) is sufficient.

Amendment 137F relates to the final paragraph of Clause 209, which states that the Investigatory Powers Commissioner should,

“keep under review the definition of ‘relevant error’”.

We have added a requirement that any recommendations should be included in reports made under Clause 212, which covers annual and other reports required from the Investigatory Powers Commissioner.

I beg to move Amendment 137A.

[Lord Rooker (Lab)]

Can the noble Lord explain proposed new subsection 3(b)? Could the subject of a warrant challenge that subsection using other legislation —on the fact that there are “no details”, for example? Is it open to challenge by that person, using any of the other laws on the statute book?

[Lord Paddick]

I am grateful to the noble Lord, Lord Rooker. I have absolutely no idea whether they could or could not.

[Lord Rooker]

I submit that they could. The lawyers will find a way to fill the courts with challenges from the crooks and spivs we are trying to protect the British public from. But I will wait for the Minister’s technical answer, rather than the one I gave.

[Lord Beith (LD)]

To pose a legal challenge which is not based on any instance or evidence of the basis on which such a challenge could be made—I certainly cannot think of a basis on which someone could require the production of knowledge of the means used for interception, based on existing legislation.