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
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 Strasburger (LD)
My Lords, I should mention that this subject was covered extensively in the Joint Committee on the Bill. It seems that the noble and learned Lord is suggesting that in order to be able to monitor a gang when we do not know if it is made up of three or four people, the language of the clause should be this open. Perhaps I may quote from some of the evidence that was given to the committee. The clause fails to,
“exclude the possibility that everyone who belongs to a certain trade union, political party or book club; visits a certain shop; attends (or has friends or family members who attend) a certain house of worship; subscribes to a certain publication; participates in a lawful and peaceful demonstration; celebrates or may celebrate a certain religious or national holiday”,
and so on and so forth. All those activities seem, perhaps as an unintended consequence, to be swept up by this provision. Recommendation 38 made by the committee states that,
“the language of the Bill be amended so that targeted interception and targeted equipment interference warrants cannot be used as a way to issue thematic warrants concerning a very large number of people”.
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 Beith (LD)
My Lords, the Secretary of State’s involvement in law enforcement warrants is a historical hangover from when this was the only kind of control or restraint on police applications that existed prior to this legislation. Perhaps it shows a lack of rethinking the nature of judicial authorisation, such as this Bill provides for, that her involvement—it may well be “him” in the future—should have survived when it does not seem either to have practical purpose or to add significantly to the protections that the legislation will afford against misuse or excessive use of the power.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, as the noble Lord, Lord Paddick, explained, these amendments seek to place the sole decision on whether to authorise a warrant application with a judicial commissioner. In the Government’s firm view, this would be a mistake. The noble Lord asked why there is a need for the Secretary of State’s involvement at all. Having a judicial commissioner be solely responsible for authorising warrants would remove all democratic accountability for that decision and would effectively remove parliamentary scrutiny from the process. In the scenario that a warrant was incorrectly either refused or approved, then the ability of Parliament to hold an individual to account for that particular decision would be greatly diminished.
Lord Strasburger
I think the Minister will have to concede that the notion of democratic accountability is wafer thin because a Minister cannot come to Parliament to explain or defend what is being asked about—any warrant. I would like the Minister to explain to us why the four other partners in the “Five Eyes” network—that is, Australia, Canada, the US and New Zealand—find no need for this democratic accountability.
Lord Strasburger
The “Five Eyes” partnership of Australia, New Zealand, Canada, America and the UK has been in existence since the Second World War. The UK is the only one out of those five that feels the need for Secretaries of State or politicians in general to be involved in authorising warrants. I was wondering why the UK has to stand out alone in that way.
Earl Howe
It is really quite difficult for me to answer the noble Lord’s question on the “Five Eyes”: it has to be a question for the other members of that group. The approach we have taken is consonant with our general wish, as a country, to hold Ministers to account for important decisions taken about national security and privacy, rather than to consign those decisions to the court. Nevertheless, we believe there is a role for a judicial commissioner to approve what Ministers do. That double lock is the formula which most people in the other place were comfortable with. That is probably all I can say on that score. I hope that the noble Lord will reflect on the case of Lee Rigby, which is a good example of how a Minister was directly accountable to Parliament, albeit in secret session but nevertheless fully accountable to a committee of Parliament. I am sure there are other examples where that has occurred.
Lord Pannick
Before the Minister sits down, could I test his patience? Will he write to me on the question that I raised, which is whether or not the Bill will expand the scope of the authorisation powers of the Secretary of State to new areas or whether it simply continues the existing scope of those powers? If the Bill does confer an authorisation power on the Secretary of State in relation to a wider scope, could he please explain why?
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
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 Pannick
Can the Minister give the Committee a practical example of where it would be necessary and proportionate—the test that he emphasises—to exercise these powers where there is not, to quote the amendment,
“a reasonable suspicion that a serious criminal offence has been or is likely to be committed”?
Lord Keen of Elie
I think the noble Lord helpfully makes my point for me. As I said at the outset, we are dealing with apples and oranges. We achieve the same objective by different routes, but I am obliged.
Lord Pannick
I am sorry to prolong this but I am not agreeing with the noble and learned Lord, I am asking for a practical example of why the Government are not prepared to accept a “reasonable suspicion” test.
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.
“( ) The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary on grounds falling within subsection (4).”
Earl Howe
My Lords, in moving Amendment 38, I will speak also to Amendments 117, 118, 120, 155, 157, 162, 163, 165, 166, 203, 220 and 223. I recognise that the Opposition and the Scottish National Party raised concerns about trade union protections in the Public Bill Committee in the other place. I know that it has been suggested that investigatory powers may have been used in the past to interfere with legitimate trade union activity.
Allow me to repeat what was said in the Commons. The agencies have never been interested in investigating legitimate trade union activity. The Security Service Act 1989 and the Intelligence Services Act 1994 limit the activities of the agencies. Both Acts make it explicit that the agencies cannot act to further the interests of any political party. It goes without saying that all the agencies take these duties very seriously.
The Government therefore agreed an opposition amendment on Report in the Commons to what is now Clause 20 of the Bill, making explicit that legitimate trade union activity would never be sufficient grounds of itself for an interception warrant application to be considered necessary.
These amendments read across protections from that amendment to all the relevant provisions in the Bill. It would still permit public authorities to apply for a warrant or authorisation, or issue new or varied data retention notices under Part 4, relating to members or officials of a trade union considered to be a legitimate intelligence target, but it makes explicit that legitimate trade union activity would never be sufficient grounds, of itself, for a warrant, authorisation or notice to be considered necessary. Accordingly, I beg to move.
Lord Pannick
The noble Earl recognises in his amendment that legitimate trade union activities would not of themselves be sufficient to establish the necessity of a warrant. I wonder whether the Government’s position is that they also recognise that legitimate trade union activities could not be relevant to the issue of a warrant, because the amendment does not go that far. If the Government do not recognise that, can they give a practical example of where legitimate trade union activities—I emphasise legitimate—could even be relevant to the issue of a warrant?
Lord Rosser
Unless the noble Lord, Lord Pannick, has driven a coach and horses through these amendments—I shall have to consider carefully what he said—I would like to thank the Government for bringing them forward. As has been said, they incorporate in all the relevant parts of the Bill the change that was made in relation to trade union activity in providing protection for it when the matter was debated in the Commons. We welcome the amendments and the Government honouring the commitment that they gave in the other place.