Lord Murphy of Torfaen (Lab)
The whole purpose of this legislation, whether we agree with it or not, is that there should be a double lock. When I was signing warrants for intercept, it was left to me entirely as Secretary of State. There was no involvement of the judiciary or anybody else, other than the security services providing you with a great deal of information on why you should take a particular decision. The principle behind the Bill is that a judge should look at and review the decision of the Secretary of State. The argument both in the Joint Committee and in the other place has been about whether the judge should take into account necessity and proportionality—which would have been taken into account by the Secretary of State in taking the decision in the first place—in the same way as the Secretary of State, or whether they should look at it simply through the eyes of a judge.
One of the most interesting sessions of the Joint Committee was in the Committee Room upstairs where we interviewed a judge from New Zealand—it was 5.10 am when the judge very happily came to address the committee. That is obviously a very different sort of country. With a couple of million people, they obviously do not have the same number of warrants to deal with as we do in this country. It seemed, however, from what the New Zealand judge was saying, that there was a happy relationship between him and the appropriate government Minister in New Zealand, in that when they looked at a warrant, they did so with the same eyes.
The noble Lord, Lord Carlile, is saying that if you take into account modern judicial review principles, you also take into account proportionality and necessity. But that has to be made clear. I understand that the Government made some changes in the other place with regard to this matter, but the precise role of the judge needs to be made clear. Does he or she look at a warrant simply as a judge or as a human being, and is it in the same way as the Secretary of State does?
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I begin with some of the observations made in your Lordships’ House regarding judicial oversight. On the observations of the noble Lord, Lord Strasburger, I have a double lock on my front door. The two locks work differently but they are equally effective. That really is the point of the double lock in the context of this legislation: the locks do indeed work differently but they are equally effective at the end of the day. I would adopt the observation of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that judicial oversight as it has developed provides us with a flexible standard of oversight, which in many senses is wide-ranging, as has been observed. But, of course, it is judicial oversight, and that is what we have to emphasise.
Turning to a point raised by the noble Baroness, Lady Hamwee, on working days a week, we consider that the present provision is appropriate. As to the calculation of the working day, the third working day will be calculated from the day after the warrant is issued. For example, if a warrant is issued on a Monday, it must be authorised by the commissioner by the close of Thursday. So it is the date of issue plus three working days.
Amendments 39 to 42, 165A, 167 and 168A would significantly change the so-called double-lock safeguard, such that the judicial commissioner would be taking their own decision rather than reviewing the Secretary of State’s conclusions as to whether the warrant is necessary and proportionate. The Committee will appreciate that the issue of authorisation has been a central feature in the debate on the Bill. Perhaps I might just give a brief potted history of its development.
The three reviews that shaped the draft Bill—by David Anderson QC, the Intelligence and Security Committee of Parliament and the Royal United Services Institute surveillance panel—made different recommendations in respect of authorisation. One called for full Secretary of State authorisation and the other two called for a hybrid judicial/executive model. It is noteworthy that none of them called for full judicial authorisation for all warrants. The Joint Committee that undertook pre-legislative scrutiny of the draft Bill supported the double-lock approach set out in the Bill, including the use of the well-established principles of judicial review. At Second Reading in the other place, there was very strong cross-party support for a government amendment that preserved the double lock and the role of the judicial commissioner, while linking the judicial commissioner’s scrutiny to the new privacy clause, to put beyond doubt, if it needed to be, that the judicial commissioner would need to apply a sufficient degree of care to ensure that he or she had complied with duties imposed by the new protection of privacy clause in Part 1 of the Bill. So we are on well-trodden ground, and it is clear that there is strong support—including from senior members of the judiciary—for the approach set out in the Bill.
These amendments would confuse the distinct roles of the Executive and the judiciary and undermine democratic accountability—a point touched on by the noble Lord, Lord Rooker. It is surely right that a Secretary of State, who is accountable to Parliament and ultimately to the public, should be making the decision as to whether a warrant for the most intrusive powers is necessary and proportionate. Equally, it is entirely appropriate that a judicial commissioner should be carefully reviewing that decision. While the commissioner’s role is to review the original decision, your Lordships should be clear that this is a robust safeguard. Also, the judicial commissioners will have held or will be holding high judicial office and will be familiar with the principles of judicial review.
As amended in the other place, Clause 23 makes it clear that the commissioners’ review must involve careful consideration and ultimately if the Investigatory Powers Commissioner does not approve the decision to issue the warrant, it cannot come into force. The amendments I have referred to would also require the judicial commissioner to consider the reasons given for the decision to issue the warrant. The amendment is based on a misunderstanding of how warrants operate. The Secretary of State will receive a detailed application setting out the necessity and proportionality considerations. If they agree, they will issue the warrant. They do not have to give reasons for the decision beyond confirming that they personally consider that the warrant is necessary and proportionate. The judicial commissioner will review the decision of the Secretary of State based on the evidence provided to the Secretary of State in the application. If the commissioner thinks that the evidence in the application is not a sufficient basis for the decision that has been made, the commissioner will refuse to approve the decision. We would submit that it is in these circumstances that the double-lock mechanism is appropriate in this context, and accordingly I invite the noble Baroness to withdraw the amendment.
On Amendments 16 and 19, I have already touched on the reference to removing the term “working days”. Our position is that that is an appropriate way forward with these provisions, and I again invite the noble Baroness not to press these amendments.
Amendments 97 to 99 would significantly alter the double-lock safeguard for notices, such that the judicial commissioner would be taking their own decision rather than reviewing the conclusions of the Secretary of State as to whether the notice under Part 9 of the Bill is necessary and proportionate. The amendments would accordingly also remove the requirement for the judicial commissioner to apply the same principles as would be applied by a court in an application for judicial review. As discussed during scrutiny by this House of similar clauses in Part 2 of the Bill, these amendments would confuse the distinct roles of the Executive and the judiciary, as I mentioned earlier. It is right that a Secretary of State, who is accountable to Parliament and ultimately the public, should make the decision whether it is necessary and proportionate to impose obligations on operators through the giving of a notice. Equally, it is entirely appropriate that a judicial commissioner should be carefully reviewing that decision. As I stated previously, the commissioner’s role is to review the original decision, and your Lordships should be clear that this is a robust safeguard.
One of the amendments would also require the judicial commissioner to consider the reasons given for the decision to give a notice, and again as I indicated before, this amendment appears to be based on a misunderstanding of the process of giving a notice because the reasons are not provided. In other words, under the Bill there is no need to give written reasons over and above those set out in the application itself. Again, in that context I would invite the noble Baroness not to press the amendments.
Baroness Hamwee
My Lords, I am grateful to all those who have taken part in the debate either to support or oppose me, and of course one is used to one’s friends being behind one sometimes. Perhaps I should make a disclaimer. Many years ago the noble Lord, Lord Rooker, when he was at the Dispatch Box was being a bit disparaging—that might be the term—about lawyers and, when I protested, said to me, “Not you. You’re not a lawyer”. Solicitors are excluded for this purpose.
I turn first to “working day”. The noble and learned Lord has said in effect that he disagrees with me, but I am not sure on what basis. Clause 24, where the term first comes up, deals with urgent cases, so it seems counterintuitive that one might have an extended period for dealing with an urgent case rather than one that is as tightly drawn as possible. Can the noble and learned Lord offer the Committee more as to the Government’s reasoning on this?
Lord Keen of Elie
Originally, the period was five working days and, after due consideration, it has been reduced to three. That is considered to be an appropriate period in the context of these provisions. But the Government have reviewed the measure and, as I said, that amendment has already been made.
Baroness Hamwee
Turning to judicial review, determination, refusal to approve and so on, the debate has made my point that we need greater clarity than is provided in these provisions. I agree with my noble friend Lord Carlile—the Committee may be relieved to hear that there is some agreement—at least to the extent that we should know what we want, and we do not yet have clarity in the Bill. A number of noble Lords are clear about what they want, but the Bill is not clear as to what the job is. Clause 23(4), the same clause that provides for a review, states:
“Where a Judicial Commissioner … refuses to approve”.
That suggests something more than we have been hearing about and does not suggest a double lock. I heard what the noble Lord, Lord Murphy, said, and we now have references in Clause 23(1) to necessity and proportionality. However, in assessing those matters, the judicial commissioner must apply the principles of judicial review. I may not be a lawyer in the terms of the noble Lord, Lord Rooker, but I find that this has a degree of circularity and confusion.
In his evidence to the Public Bill Committee, the noble and learned Lord, Lord Judge, said:
“I myself do not think that judicial review is a sufficient indication of those matters”.—[Official Report, Commons Public Bill Committee, 24/3/16; col. 68.]
Although I will not seek to pursue the matter today, we may well wish to return to it.
Lord Keen of Elie
I should correct a reference I made. I referred in the context of the working days to Amendments 16 and 19, which must have puzzled the noble Baroness. That was my internal numbering and I was, of course, referring to Amendments 43 and 61. I apologise for that.
Baroness Hamwee
My Lords, I was so confused that I did not even bother to check the references. I beg leave to withdraw the amendment.
Lord Rosser (Lab)
Perhaps I may make a brief comment about Amendments 85A and 85B in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. We, too, want to hear the Government’s response to the views expressed by the Delegated Powers and Regulatory Reform Committee. I will not go over those views, since the noble Lord, Lord Paddick, has already set them out. In brief, the first is the fact that paragraph 33 of Schedule 8 includes a power to amend the provisions of Schedule 8 itself. The committee said that it needed “a very convincing explanation” of why that was necessary; otherwise, it would find the power inappropriate. The other, as the noble Lord said, concerns the fact that the powers conferred by paragraph 33 of Schedule 8 include a power to amend future enactments whenever passed or made. The committee commented that it felt that such powers were inappropriate. In view of the comments made by the committee, we, like the noble Lord, wish to hear the Government’s response to the committee’s points.
Lord Keen of Elie
I will begin with that last point on Amendments 85A and 85B. The Government believe that the power is necessary for the reasons outlined by the noble Lord, Lord Paddick, but we are conscious of the terms of the report made by the Delegated Powers Committee. We are still reflecting on those comments and intend to respond in due course. I hope that that will give some satisfaction to the noble Lord. The matter is still under consideration and no final view has been arrived at.
I now turn back to the matter raised by the noble Baroness, Lady Jones. By way of background, your Lordships will be aware that, last November, the Prime Minister announced additional protections for the communications of Members of Parliament and Members of other legislatures, including the Scottish Parliament and the assemblies. Clause 26 sets out the requirement for the Prime Minister to approve the Secretary of State’s decision to issue a warrant to acquire communications sent by a Member of Parliament or intended for a Member of Parliament. Again, I use the term “Member of Parliament” to embrace Members of the other legislative assemblies referred to by the noble Lord, Lord Murphy.
Amendment 43A would remove the role of the Secretary of State from the warrant authorisation process where the Wilson doctrine is engaged—I will come on to the Wilson doctrine in a moment—which would in fact reduce the safeguards for parliamentarians. In line with the commitment given by the Prime Minister last November, the Bill provides a triple lock where warrants concern a parliamentarian’s communications: they must be authorised by the Secretary of State, agreed by the Prime Minister and authorised by a judicial commissioner.
I will not rehearse again the arguments for the double lock at this point, but it is important to remember that it was endorsed by the Joint Committee of Parliament that scrutinised the draft Bill and that, following amendments made in the other place, it enjoyed cross-party support. The triple lock for parliamentarians simply adds an extra layer of checks to this important process. It is difficult to see what possible benefit would accrue from removing one of those checks—that is, the Secretary of State—which would also serve to undermine the accountability of the Secretary of State to Parliament for the activities of the agencies that the Secretary of State oversees. In view of that, I respectfully invite the noble Baroness to withdraw her amendment.
Amendment 45 would provide a role for the First Minister of Scotland in approving warrants to acquire communications sent by or intended for a Member of the Scottish Parliament. However, we do not consider that it would be appropriate for the First Minister to have a role in approving a decision taken by the Secretary of State on what is a reserved matter.
As to the operation of serious crime warrants, which the noble Lord, Lord Paddick, might have had in mind, particularly in Scotland, it is of course for Scottish Ministers to determine what additional safeguards they wish to provide in relation to parliamentarians. That is a devolved matter within their competence, and the same may in due course apply in the context of the Welsh Assembly—or, indeed, any other assembly that is set up.
The effect of Amendment 44 would be to provide for the Prime Minister to inform the relevant legislature that such a warrant or warrants has or have been issued—a point raised by the noble Lord, Lord Beith. Noble Lords will be aware that the Wilson doctrine, as it is termed, followed from a statement made by the then Prime Minister that, as a general policy, there would be no tapping of MPs’ telephones—but that, if there was a need to make a change to this general policy, the Prime Minister would, at a time of his choosing and when the national security situation allowed, make a Statement in the House. That is what is encompassed within the Wilson doctrine.
In a Written Ministerial Statement last November, the Prime Minister again confirmed that the Wilson doctrine continued to apply. He went on to explain the Government’s position on the Wilson doctrine and how it would apply in the 21st century. In his Statement, the Prime Minister was clear that the Wilson doctrine does not place an absolute bar on the interception of parliamentarians’ communications and confirmed that he would be consulted should there ever be a requirement to target a parliamentarian under a warrant issued by a Secretary of State. As has been noted, particularly as a result of the changes in the other place, the Bill now goes further by providing that the Prime Minister must provide explicit authorisation for a warrant to target a parliamentarian’s communications.
I understand that every Administration since 1966 has confirmed that the Wilson doctrine remains in place. This Government have done so on numerous occasions in Parliament. The doctrine includes the Prime Minister’s commitment to inform the relevant legislature, at a time of his choosing and when national security allows, should there ever be a change to the general policy. There has been cross-party agreement on this issue for more than 50 years. In view of the Prime Minister’s statement, and the stringent safeguards in the Bill, which go further in statute than was previously provided for, no further statutory provision is considered necessary.
Lord Beith
Does that not make for a very limited interpretation of the Wilson doctrine? For the Prime Minister to have to come and make a Statement to the House, it would have to be, “It is now the Government’s policy to intercept the communications of MPs generally, or widely, and this represents a change in policy”. That is the only way I can understand the doctrine working in the way that the Minister described.
Lord Keen of Elie
I concur with the observation of the noble Lord. It would have to be a change to the general policy that prompted a Statement to Parliament. It is not the use of the statutory powers that will ever prompt a Statement to Parliament. Indeed, if a parliamentary Statement were required in those circumstances, it would essentially undermine the purpose of these investigatory powers.
Baroness Jones of Moulsecoomb
Still on the Wilson doctrine, we heard from the Investigatory Powers Tribunal that the Government could not guarantee that parliamentarians’ communications would not be intercepted. They simply could not do it, because the intelligence services cannot remove our addresses and phone numbers from their bulk interception. So it is quite possible that parliamentarians’ communications are intercepted on a regular basis by accident. It is only when they are targeted that the process with the warrants kicks in. That was the ruling from the tribunal.
Lord Keen of Elie
I concur that there may be instances in which parliamentarians’ communications are not targeted but where a parliamentary communication is disclosed incidentally to investigations of third parties. However, one cannot plan for that or provide for a warrant for that in advance. It is a consequence, sometimes, of actions against third parties.
May I move on to Schedule 8 and the subject of combined warrants, which I touched on before? I confirm what I said at the outset: that this issue is still under consideration. I hope that, taking that into account, the noble Lord will consider it appropriate not to press his amendments.
Lord Rooker
Can I ask the Minister a question before he finishes? I did not want to interrupt what he was saying about the government amendments, but in reading Amendment 226, do I take it that the judicial commissioner gets involved only after the Prime Minister has given approval? It is not clear, but I am just assuming that has to be the case, so that the Prime Minister has also had oversight of the decision, rather than the Prime Minister coming in after the judicial commissioner has agreed, say, the Home Secretary’s decision.
Lord Keen of Elie
The noble Lord is, I believe, entirely correct. The sequence will be that the Secretary of State will approve the warrant, the matter will be brought to the attention of the Prime Minister, who will then address it, and only after that will it go to the judicial commissioner, who will then apply his review process to the determination that has been made.
Lord Lester of Herne Hill
My Lords, I wonder whether, just for the sake of completeness, I could get an assurance about this. On the first day in Committee the noble Earl, Lord Howe, with his customary courtesy, moderation and generosity, said that the Government would think again about Clause 2 and what I had said about its compatibility with the convention. I fully understand the Government’s reasons for the amendments now in this group, but they are of course parasitic on what is now in Clause 2, so I very much hope that Clause 2 will be improved before the Bill goes much further.
Lord Keen of Elie
I note the noble Lord’s observations. I cannot elaborate on the observations made by the noble Earl in response to his question, nor can I necessarily meet the manner in which he responded to him.
Baroness Jones of Moulsecoomb
I thank all noble Lords who have commented on my amendments, and the Minister for his answers. When we debate here, we often forget what it looks like to outsiders. I am naturally extremely law-abiding—I stop at red lights, I do not drop litter—but I am also highly suspicious of authority. As far as I can represent a constituency outside, I represent people who are suspicious of politicians. They are probably also suspicious of lawyers, but possibly not quite as much. When we have politicians signing off on other politicians, we must accept that it will not look that good to some people. You might argue that those highly suspicious people are not the people who put us here, which is of course quite right, but at the same time, we must be aware of what it looks like for our reputation. I accept that the amendment is not particularly popular, so I beg leave to withdraw it.
Lord Brown of Eaton-under-Heywood
I was not intending to say anything this afternoon, let alone on this amendment, but following what the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Beecham, have said, it occurs to me that if one widens out the provision that is the subject of Amendment 48 to introduce some essentially non-legal consideration, one would have to make it subject also, as routinely across this legislation, to ministerial approval. They must be answerable for that non-legal aspect. I therefore suggest that this might be a situation in which one should have two primary decision-makers, not therefore judicial oversight but judicial primary decision-making on the legal aspect—such as whether it is in truth a legal professional privileges situation and whether, in so far as criminal purpose is relied on, that is satisfied. However, in so far as the wider terrorism situation is being addressed, the justification for all that should initially be put at the ministerial door as well.
Lord Keen of Elie
My Lords, the Government recognise the importance of legal professional privilege—the client’s privilege—in the context of the rule of law. This is perhaps one of the most important issues that we will consider in the context of the Bill.
The noble Lord, Lord Pannick, outlined the operation of legal professional privilege and explained what is sometimes termed the iniquity exception. He went on to identify what he considered to be the issue of principle that we are concerned with in the context of the amendment and invited me to indicate whether I agreed with his outline of privilege—the iniquity exception—and the principle with which we are concerned. I am happy to concur and accept his clear exposition of the position in that regard. So I shall not elaborate on what is legal professional privilege or the iniquity exception, except to this extent. What is termed the iniquity exception arises where the client is using the conversation with the lawyer in furtherance of a criminal purpose, whether or not the lawyer is a witting party to that. If the lawyer is unwittingly used as a tool or a conduit, the iniquity exception would apply in those circumstances as well; with that, we have no difficulty.
However, there are further circumstances in which the iniquity exception would not necessarily obtain, and when a very important piece of intelligence might become available if the communication was considered by the relevant authorities. I go back to a scenario that I shared with number of noble Lords when we discussed this in recent days. An agency may have intelligence to suggest that an individual is about to carry out a terrorist attack. It knows that he is in contact or about to be in contact with a legal adviser, and it has reason to believe that that contact with the legal adviser might reveal information that could assist in averting the terrorist attack. The example is where the client might refer to his whereabouts. He might say, “I’m in Paris”, or “I’m going to be in Paris tomorrow”, or “I’m in London”, or “I’m going to be in London tomorrow”. It is that piece of intelligence in the course of the privileged communication that is critical. I know that some commentators—and, indeed, the Bar Council—have suggested that that would fall within the iniquity exception; it does not. Indeed, if we try to stretch the iniquity exception, we damage the concept of legal professional privilege, so we must be very careful about how we approach this.
So there is that exceptional situation—and it must be exceptional before any warrant could be contemplated—in which intelligence gleaned from such a conversation would be of critical importance. I stress the word “intelligence” because on occasion it is very easy to refer to this as evidence. Such intelligence would never be admissible in a court of law, so let us be careful about that. We are talking about intelligence as such, not evidence.
The noble Lord, Lord Pannick, suggested that this would be such an unusual event that to approve the power would be to approve a power of purely theoretical value. With great respect to the noble Lord, the fact that something is highly unusual or highly exceptional does not render the power theoretical. The power may not have been employed in the past and it may not be employed in the foreseeable future; that does not render the power theoretical. The occasion may arise, in the face of a terrible terrorist threat, in which such intelligence can be made available to the appropriate agencies. If we bring down a guillotine, LPP will be denied to them. So the power is not theoretical.
The noble Lord, Lord Carlile, made the very good point: we are really dealing here with the question of balance. Should we intrude upon what we see as legal professional privilege—that fundamentally important concept—for the sake of a highly exceptional case in which such intelligence could be critical? There is an element of balance there.
Lord Keen of Elie
If I might continue for a moment, reference was made to the potentially chilling effect—I am not sure about the chilling effect of burning down a house to roast a pig—that this would have on lawyer-client relationships. Indeed, the noble Lord, Lord Pannick, spoke of the enormous damage to the rule of law, with no lawyer able to say that his legal advice was confidential. With great respect, this power has been available to the relevant agencies since 2000. The safeguards that we wish to place in the Bill have been contained in codes of conduct since 2003. Can the noble Lord, Lord Pannick, give me a concrete example of enormous damage to the rule of law since 2000 because of that existing power? Can he give me a concrete example of a lawyer saying to his client, “I can’t give you confidential legal advice because of this exceptional power”, which has existed now for 16 years? I am not aware of any such examples, I have to confess. The noble Lord wanted to intervene, so I shall give way at this point.
Baroness Hamwee
My Lords, before the Minister responds to that, it seems that he would be in a better position to answer the question than the noble Lord, Lord Pannick, because I cannot see how he could give an example without someone having breached client confidentiality along the way.
Lord Keen of Elie
Let me say this: the matter is not speculative and it is not theoretical, as the noble Lord concedes. I am not aware of any example of this having happened in the past 16 years, but that does not render it speculative. The point is that the example that can be given—the example I gave—is one that could arise in the future. The question then is whether the agencies should have a means to secure that vital intelligence or face a complete brick wall. In this context, we would simply say this. In response to the point made by the noble Lord, Lord Pannick, over the past 16 years, there is no evidence of damage to the rule of law and no evidence of any intrusion on the ability of lawyers to say that their legal advice is confidential because it is appreciated that this is a wholly exceptional power.
Lord Lester of Herne Hill
If we assume that the Committee is with the Minister in saying that a wholly exceptional power that has never been used should now be given new parliamentary authority in this Bill, the next question to ask is: what about the intervention of the noble and learned Lord, Lord Brown of Eaton-under-Heywood? He said that there need to be adequate safeguards against abuse and suggested that the adequate safeguard would be that the judicial commissioner should look at the merits of the matter. Perhaps I may remind the noble and learned Lord of a case in the mid-1970s, Klass and others v Federal Republic of Germany, when the Strasbourg court said of surveillance powers that there must be adequate safeguards against abuse. It would help me to know what the adequate safeguards against abuse really would amount to.
Lord Keen of Elie
I am obliged to the noble Lord and I am coming to the point made by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. I am not entirely unfamiliar with the case of Klass, and I thank the noble Lord for drawing it to our attention. We recognise that if this exceptional power is to be maintained in the Bill as it is in existing legislation, and if the safeguards in the existing code are to be improved, we must address that very clearly. That is why I have had ongoing discussions with the Bar Councils, the Scottish Bar and the Law Societies to try to achieve some consensus on this point. I therefore welcome the amendment because we are still considering the issue and we recognise the need to ensure that such an exceptional power is properly safeguarded. As to the actual means, we have not come to a final conclusion, but I note the suggestion of the noble and learned Lord, Lord Brown, and I am conscious that that might be one approach. However, I cannot commit us to any single approach at this time. I underline expressly that this power would only ever be employed in exceptional circumstances.
I rather think we are circling the same point. Of course the Government recognise the concerns that people have with regard to legal professional privilege. We understand the critical nature of that privilege and that any intrusion on it calls into question its effectiveness in the context of the rule of law. I go back to the point made by the noble Lord, Lord Carlile, that a balance must be struck here, but if there is a balance, there has to be something on each side. The question now is what we can put in place on our side.
Lord Keen of Elie
Perhaps I may finish before the noble Lord intervenes. That is why we will keep this under consideration for the purposes of Report stage.
Lord Carlile of Berriew
What the Minister has said is welcome, because we do not want to vote on this on Report but to try to find consensus on an important issue. In addition to considering the proposition of the noble and learned Lord, Lord Brown, I ask the Minister to try at least to provide the Committee with some qualitative evidence without breaching national security. I respectfully suggest that it might be worth talking to his friends in the Northern Ireland Office, who have enormous experience of this kind of issue. If it emerges that, even in that department, this kind of exceptional power has not had to be used for any useful purpose in the past 20 or so years, it will be real evidence that it is not required.
Lord Keen of Elie
I note what the noble Lord says and welcome the suggestion that we speak to the Northern Ireland Office to see what its experience has been over the past 16 years and take that into account. However, at this stage, without further elaboration, and appreciating that the Committee understands the issue of principle that we are concerned with, I invite the noble Lord to withdraw the amendment.
Lord Thomas of Gresford (LD)
I have listened with puzzlement. I know that anecdotes do not go down terribly well, but some years ago I was playing rugby for the northern circuit of the Bar against the Irish Bar. I became friendly with an American spectator and talked with him; I think that I introduced him to the Chief Justice of Ireland that evening at dinner in the King’s Inns. However, the following Wednesday half a page was written about the American, who was on the run from the United States for spying. Everything comes into that, including surveillance. I thought no more about it for a fortnight until the phone rang, and it was him. He said, “I want your advice”. I said, “Where are you?”. He said, “I’m in Paris”. I said, “What do you want to know?”. “He said, “Which countries don’t extradite to the United States?”. I could not conceivably breach legal professional privilege by telling your Lordships what my advice was, but would that merit a warrant for interception of the telephone call to me at my home from somebody in Paris in such circumstances?
Lord Keen of Elie
There might be circumstances in which the relevant individual was intent upon a terrorist outrage in Paris, and if the fact that he was going to communicate with the noble Lord was known to the authorities, they might consider that piece of intelligence to be absolutely critical to preventing that terrorist atrocity. In those circumstances, it is possible that the information could be obtained.
Lord Thomas of Gresford
But not the fact that he was proposing to escape charges of spying by going to another country. Was there something iniquitous about our conversation?
Lord Grabiner (Non-Afl)
There probably was because no solicitor was engaged. So privilege was not attracted at all.
Lord Keen of Elie
The noble Lord makes a good point, and it may be that the noble Lord, Lord Thomas, wishes to refer himself to the Bar Standards Board. However, I understand that the rules have changed since then.
Lord Thomas of Gresford
The first thing I did was to instruct a solicitor to go and see him.
Lord Rosser
I will make just one very brief point. These amendments on modifications relate to an area where the system could—and I use the word “could”, not “will” or “would”—be abused, in the sense of a significant modification being made to a warrant perhaps not having to go through the kind of process one would have to go through with the initial warrant. I hope the Minister might respond in a rather wider context than the specifics of the amendments and set out why the Government believe, as far as the Bill is concerned, that the modification process cannot be used to achieve a major change in a warrant without having to go through the proper procedures of getting judicial authorisation. To some extent, I think that what lies at the heart of this issue on modifications is wanting an assurance, which can be given really only by spelling out the process that would prevent the system being abused in this way.
Lord Keen of Elie
Perhaps I might begin with that last point. The whole structure of the Bill involves checks and balances. At the end of the day the Investigatory Powers Commissioner will carry out auditing and oversight functions to ensure that the requirements in respect of warrants and their modification have been adhered to. Therefore, it is a question of looking at the overall structure and functioning of the warranty system under the Bill. It is not spelled out in any one particular clause. I just make that observation at this stage.
Amendments 53, 55, 56 and 57 seek to provide that all modifications to a warrant must be authorised by a judicial commissioner. In our view, that is neither necessary nor appropriate. Clause 32 creates a carefully constructed regime, differentiating between major modifications and minor modifications. A major modification is one which adds or varies the name or description of a person, organisation or set of premises to which the warrant relates. A modification which adds or varies a factor identifying the communications described in the warrant will be a minor modification; for example, a minor modification might be adding a new telephone number for a known target. In addition, a modification that removes something from a warrant, and so reduces the conduct authorised by it, is a minor modification. The Bill makes this sensible distinction between major and minor modifications. In neither case is the judicial commissioner required to authorise the modification because the requirement to modify warrants to keep them up to date is first and foremost a safeguard.
I will explain how major modifications will operate under the legislation. The Bill provides for major modifications to be made only to so-called thematic targeted warrants. Current statute, such as the Regulation of Investigatory Powers Act 2000, allows for the issue of such warrants. They may be granted against, for example, the members of a kidnap gang. Thematic targeted warrants are invaluable in complex or fast-moving investigations. The Bill serves to put them on a clearer footing and to strengthen the safeguards that apply to them.
These warrants cannot be open-ended. Their scope must be sufficiently defined for the Secretary of State to be able meaningfully to assess whether the action is necessary and proportionate—the relevant statutory test. The Bill introduces a new safeguard, requiring the warrant to be modified to include names or descriptions of the subjects of the warrant, as far as it is reasonably practicable to do so, as the investigation progresses. This will assist the Secretary of State and the judicial commissioner in overseeing the warrant. There would be no benefit in having a commissioner authorise a modification that is being made in the first place only to inform his own oversight of the warrant. It would introduce unnecessary bureaucracy and the Bill already makes it clear that major modifications that engage the Wilson doctrine or legal privilege will be subject to the full double lock.
In our view, providing a role for the judicial commissioner in authorising a minor modification is even more superfluous. A minor modification caters for those circumstances where the subject of a warrant changes his phone or starts using a different email address. Those under investigation regularly change their phones or use different communications services in a bid to evade detection. The speed and volume of modifications of this nature are such that a role for the judicial commissioner in authorising the modification would cause the operational agility of the system to slow almost to a halt. This would inevitably have an impact on the ability of our law enforcement and security and intelligence agencies to perform their core function of protecting the public.
Clause 33 provides clear definitions of what constitutes a senior position in a public authority—that is, the authority that can deal with modifications—and an example is someone at the level of brigadier in the Ministry of Defence. We believe it is entirely appropriate that a person holding such a position is able to make a minor modification; for example, to determine that a new means of communication, such as a telephone number, being used by the person under investigation should be added to the warrant. Of course, we recognise the importance of ensuring the process for making modifications is as rigorous as it can be. That is why the Bill was amended in the other place to apply the necessity and proportionality test to minor modifications, as well as major modifications. Accordingly, I invite the noble Baroness to withdraw Amendment 53.
Amendment 54 would limit the circumstances in which a minor modification may be made to an interception warrant. It would have the effect that the only modifications that could be considered minor would be ones that either remove something from a warrant or correct an error in the description of a factor. We suggest that the amendment is unnecessary and would undermine the effective operation of the modification process. It would mean, for example, that where the subject of a warrant bought a new mobile phone, simply adding the mobile phone number to the warrant would be a major modification. The Bill would then require that this modification be made by the Secretary of State, or a senior official acting on their behalf, and notified to a judicial commissioner, even though the Secretary of State has already made the decision that it is necessary and proportionate for the communications of the individual to be intercepted, and the judicial commissioner has already approved that decision.
We recognise the importance of ensuring that the process for making modifications is rigorous. That is why we have amended the Bill following consideration in the other place such that there must be a consideration of necessity and proportionality for minor modifications, not just major modifications, as I mentioned before. We amended the Bill to ensure that the judicial commissioner is notified of a major modification to a warrant, as well as the Secretary of State, so that they have an ongoing visibility as to the extent of the activity authorised by the warrant. In conclusion, the process for making minor modifications is already sufficiently stringent, the amendment is unnecessary, and it would undermine the efficient operation of the warranty and modifications process. I invite the noble Baroness not to move Amendment 54.
Amendment 60 relates to where a major modification is being made when the protections for the communications of a parliamentarian or items subject to legal professional privilege apply. The amendment seeks to provide that, even where it is not reasonably practicable for the Secretary of State to sign the modification instrument, the instrument may be signed by a senior official only if it is being made urgently. This amendment is unnecessary and is, I believe, based on a misunderstanding of what Clause 34 provides for.
Clause 34 enables an instrument making a major modification where Sections 26 and 27 apply—in relation to parliamentarians and items subject to LPP—to be signed by a senior official where it is not reasonably practicable for the Secretary of State to sign it; for example, when the Secretary of State is out of the country, working in their constituency or otherwise unavailable. But the modification must still be personally and expressly authorised by the Secretary of State before the senior official can sign the instrument. The senior official is signing on behalf of and to acknowledge the Secretary of State’s authorisation. That is why we suggest that Amendment 60 may be unnecessary.
It may be appreciated that there will be instances when the Secretary of State is simply not physically able to sign a modification instrument. The purpose of Clauses 34(8) and (9) is to make explicit provision for this and to make it clear that a modification made in such circumstances—where the Secretary of State has approved but is not available—is not an urgent modification. That underlines the point I was seeking to make earlier, that there will always have been authorisation by the Secretary of State. Against that background, I invite the noble Baroness not to move Amendment 60.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, Clause 48 maintains the position set out in RIPA that interception is lawful in certain circumstances in psychiatric hospitals. The clause sets out that interception is lawful if it takes place in any hospital premises where high-security psychiatric services are provided and is conducted in pursuance of, and in accordance with, any relevant direction given to the body providing those services at those premises.
While the clause provides that the interception is lawful, it is the relevant direction under the National Health Service Act 2006, the National Health Service (Wales) Act 2006, the National Health Service (Scotland) Act 1978, or the Mental Health (Care and Treatment) (Scotland) Act 2003, that sets out how and when the interception may be conducted—that is not a function of this Bill.
Clause 49 provides that certain interception carried out in relation to immigration detention facilities is lawful. The Immigration and Asylum Act 1999 contains powers for the Secretary of State to make rules for the management of immigration detention facilities, and Clause 49 provides that interception carried out in accordance with those rules will be lawful. At present, rules have been made only in respect of immigration removal centres—the Detention Centre Rules 2001. The interception of communications in relation to immigration removal centres, in line with the statutory rules, is purely for the purposes of maintaining the security of those centres or the safety of other persons, including detainees. It is right that officers should be able, for example, to intercept attempts to send controlled drugs or other contraband material into particularly sensitive and secure environments.
Contrary to speculative claims, this power can never be used to determine the outcome of any person’s asylum claim. Again, the precise circumstances in which interception may take place in immigration detention facilities are not a matter for the Bill. To be clear, the purpose of this clause is not to determine rules relating to the management of immigration detention facilities. The purpose of the clause is simply to make clear that conduct authorised and regulated under existing legislation—specifically, the Immigration and Asylum Act 1999—would be lawful.
Rules made under the 1999 Act about the regulation and management of detention facilities are subject to negative resolution, as specified in the Act and as agreed by Parliament. Such rules in relation to interception would be based on the clearly legitimate purposes already contained in the Detention Centre Rules 2001. The interception of communications in relation to immigration removal centres, in line with the statutory rules, is purely for the purposes of maintaining the security of those centres or the safety of other persons, including detainees, as I explained.
I hope the noble Baroness will accept that the amendments are unnecessary and that the clauses should stand part of the Bill.
Baroness Hamwee
My Lords, I have found it difficult throughout the Bill to accept that something is necessary just because it is in RIPA or is currently in effect. I am afraid I gave up chasing through the references in Clause 48—I thought my iPad was going to give out on me if I asked www.legislation.gov.uk any more questions on Sunday morning. I should have pursued this, and for that I apologise to the Committee. I think I am reassured by the explanations I have. I will go away and read the record, but I am grateful to the noble Earl.
Earl Howe
My Lords, in moving Amendment 73, I will speak also to Amendments 74, 75 and 76. I can be brief. These amendments add further conditions to Clause 50, which provides for circumstances in which a telecommunications operator may intercept communications in response to a valid overseas request. The additional conditions clarify that the Secretary of State must designate those international agreements to which this clause applies and require that the interception must be for the purpose of obtaining information about communications of people known, or believed to be, outside the United Kingdom. I beg to move.
Lord Strasburger
My Lords, I have a question for the Government. Am I correct in believing that evidence derived from equipment interference is permitted to be used in court? If so, could not equipment interference lead to an equally large and costly process of evidence-gathering? Why is there a difference between the two sources of evidence?
Lord Keen of Elie
My Lords, the Government are, of course, committed to securing the maximum number of convictions in terrorism and serious crime cases. The experience of other countries is that the use of evidence gathered through interception may help to achieve that. For that reason, the Government have considered whether there is a practical way to allow the use of intercept as evidence in criminal proceedings.
The issue of whether intercept material can be used as evidence has been considered in great depth no less than eight times since 1993. Each of those reviews—published by Conservative, Labour and coalition Governments—has concluded that the current prohibition which does not allow intercept material to be used as evidence should remain in place. This is the position maintained in statute since 1985, and provided for in the Bill at Clause 53.
The most recent review, in 2014, was overseen by an advisory group of privy counsellors from all parties, including my noble friend Lord Howard of Lympne and the noble Lord, Lord Beith, who is no longer in his place. That review went further than any previous review by considering the costs and benefits of a regime for the use of intercept as evidence, even if that meant considerable operational upheaval for the intercepting agencies. The review found that the substantial costs and risks of introducing the use of intercept material as evidence in court would outweigh the uncertain benefits.
When the conclusions of the latest review were published in December 2014, the Home Secretary undertook to keep the issue under review and to revisit it should circumstances change. But there has been no significant change since that time. We appreciate that the amendment is intended to provide for a change of circumstances to be reflected in secondary legislation. However, we consider that such a significant change as introducing intercept as evidence would be appropriate for primary legislation rather than regulations, even those subject to the affirmative procedure.
Finally, on the point raised a moment ago, it is the case that material derived from equipment interference is used in evidence. That has, historically, always been the case, and there is no need to move away from that established position. I invite the noble Baroness to withdraw her amendment.
Lord Strasburger
I thank the noble and learned Lord for his reply, but my question was: why is it in one case suitable to use the evidence in court, but in the other not?
Lord Keen of Elie
Because it has been established as a matter of evidential law over many years that it can be admitted. Therefore, adequate provision is in place for its admission as evidence.
Baroness Hamwee
I am not sure that my noble friend will feel that he has had further enlightenment, but I have to say that I agree with pretty much everything the noble and learned Lord said. The one thing he said which I could not really have known is that circumstances have not changed—I think that was his term. The amendment is by no means ideal, but we have taken only nine minutes on it, which in the context of the Bill is but a blink of an eye, and it was right to put on record our concern that the issue should not be lost sight of. I beg leave to withdraw the amendment.
“( ) the duties imposed by section 2 (general duties in relation to privacy);”
Baroness Hayter of Kentish Town
My Lords, as was mentioned, Amendment 89 stands in my name and that of my noble friend Lord Rosser. Clause 222(6) contains what is to me the unusual phrase:
“Different levels of contribution may apply for different cases or descriptions of case but the appropriate contribution must never be nil”.
“Must never be nil” is a slightly strange phrase, especially given that someone who, until a few hours ago, was the Home Secretary but is now the Prime Minister said on Second Reading:
“I reiterate … that … 100% of the compliance costs will be met by the Government”.
She was asked to provide a long-term commitment for that and said,
“we are clear about that in the Bill … it is not possible for one Government to bind the hands of any future Government in such areas, but we have been clear about that issue”.—[Official Report, Commons, 15/3/16; col. 821.]
However, being clear about the contribution which must never be nil is not what I call clarity.
Amendment 89 simply takes the then Home Secretary’s words as used in Parliament that the Government would meet 100% of the compliance costs, with full cost recovery for communication service providers, which, after all, have to implement the legislation. It is important to write it into the Bill to ensure that the financial impact of the legislation is transparent, not hidden, and to give forward confidence to those companies, whose activity in this country is already a little wobbly thanks to Brexit, that they will not at some point be hit by unexpected and unavoidable costs.
As was mentioned, Amendment 89 also allows for a proper audit to ensure that operators do not provide unduly high costings. Obviously, they can make no profit from these procedures because they are a departure from normal business, but they need those costs to be met. Cost recovery could be significant, but the Bill does not seem to put any limit on it at present. We will depend on the good will of these companies to make the Bill effective. We should not charge them for their willingness as well.
Earl Howe
My Lords, this amendment seeks to ensure that communications service providers are fully reimbursed for their costs in connection with complying with obligations under this Bill, and that arrangements for doing so are in place before the provisions in the Bill come into force. It is, of course, important to recognise that service providers must not be unduly disadvantaged financially for complying with obligations placed upon them. Indeed, the Government have a long history of working with service providers on these matters. We have been absolutely clear that we are committed to cost recovery. I want to reaffirm to the Committee a point that my right honourable friend the Security Minister made very clear in the other place: this Government will reimburse 100% of reasonable costs incurred by communications service providers in relation to the acquisition and retention of communications data. This includes both capital and operational costs, including the costs associated with the retention of internet connection records. I hope that that assurance is helpful.
The key question that this Committee needs to consider is whether it is appropriate for the Government of today to tie the hands of future Governments on this issue. I wonder whether, on reflection, the noble Baroness thinks it right to press for that. That does not mean that we take our commitment lightly or that future Governments will necessarily change course. Indeed, I suggest that it is unlikely ever to be the case; for example, the current policy has not changed since the passage of the Regulation of Investigatory Powers Act 2000 and so has survived Governments of three different colours or combinations of colours.
This Government have been absolutely clear that we practised cost recovery and we have been consistent in our policy for a very long time. Indeed, this Bill adds additional safeguards requiring a data retention notice to set out the level of contribution that applies. This ensures that the provider must be consulted on any changes to the cost model and also means that the provider would be able to seek a review of any variation to the notice which affected the level of contribution. The Government already have arrangements in place for ensuring that providers receive appropriate contribution for their relevant costs without delay, so the amendment that seeks to ensure that they are in place before the provisions come into force is, I suggest, unnecessary. Accordingly, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I wrote down a number of phrases, including “not unduly disadvantaged”. In the light of the absolute, clear commitment to full cost recovery, I wonder whether “unduly” is the right term. I also wrote down “100% of reasonable costs” that ought to be covered by the audit provision. The noble Earl has just referred to an appropriate contribution for relevant costs. I am sure he will understand where I am going with these terms.
The noble Earl asks whether it is appropriate to tie the hands of future Governments. I would say that in this instance it is appropriate, because a future Government can bring forward future legislation and that would be the way to do it—not to seek to resile from what everyone regards as a very important commitment given, but where there is a detraction from it in the terminology of Clause 222. I do not know whether the noble Earl is in a position to make a comment about “unduly” now. I suspect he is not. It is a rather unfair question from me.
Earl Howe
We are clear that it is important to ensure that communications service providers are neither advantaged nor disadvantaged by obligations imposed under the Bill. The Government will maintain, therefore, their long-standing policy of making a reasonable contribution to costs, but it is unthinkable that the Government would seek to place any unreasonable financial burdens on a company simply for complying with a warrant. So we are talking about reasonable costs. That is surely right. It is not appropriate for the taxpayer to subsidise unreasonable costs, but as I have said, we have made a commitment to reimburse 100% of reasonable costs incurred by the communications service providers, and that includes both capital and operational costs.
(a) this Act;(b) the Intelligence Services Act 1994;(c) the Regulation of Investigatory Powers Act 2000;(d) the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 11).”
Earl Howe
My Lords, I shall also speak to the other government amendments in this group. These amendments seek to make minor changes to the notice-giving provisions in Part 9 of the Bill. Clause 225 provides for the Secretary of State to give a notice to a telecommunications operator in the United Kingdom requiring it to take steps in the interests of national security. Such a power is a critical tool in protecting our national security.
The power can only be exercised if the Secretary of State is satisfied that the steps required by a notice are necessary in the interests of national security and proportionate to what is sought to be achieved. The Government amended the Bill in the other place to provide for the application of the double-lock authorisation process to national security notices. This means that a national security notice could not be given unless a judicial commissioner had approved it.
This will replace the existing power in Section 94 of the Telecommunications Act 1984 which has been used for a range of purposes, including for the acquisition of communications data in bulk. This is now provided for in Part 6 of the Bill. Section 94 of the Telecommunications Act will be repealed. The power provided for by this clause will be used for a much narrower set of purposes than Section 94, but those purposes are nevertheless critical to our national security. The type of support that may be required from communication service providers includes the provision of services or facilities which would assist the intelligence agencies to carry out their functions more securely, or in dealing with an emergency as defined in the Civil Contingencies Act 2004.
A national security notice cannot be used for the primary purpose of obtaining communications or data. Clause 225(4) provides that a national security notice may not require the taking of any steps the main purpose of which is to do something for which a warrant or authorisation is required under the Bill. This amendment makes it clear that it is also the case that a notice may not require the taking of any steps the main purpose of which is to do something for which a warrant or authorisation is required under legislation which authorises the use of investigatory powers.
Amendment 90 lists the other statutes that provide for agencies to obtain data covertly—namely, the Regulation of Investigatory Powers Act 2000, the Regulation of Investigatory Powers (Scotland) Act 2000 and the Intelligence Services Act 1994. The amendment puts it beyond doubt that a national security notice cannot be used to circumvent the need to obtain a warrant or authorisation provided for in the Bill or in other relevant statutes.
I turn to Clause 226, which provides for the Secretary of State to give a technical capability notice to a telecommunications or postal operator requiring the operator to maintain permanent technical capabilities. The power builds on the current power in the Regulation of Investigatory Powers Act 2000 where a company can be obligated to maintain a permanent interception capability. The purpose of maintaining a technical capability is to ensure that, when a warrant is served, companies can give effect to it securely and quickly. The provision is particularly important when law enforcement or the security and intelligence agencies need to work at pace to identify and counter the actions of those who pose an immediate threat to the UK.
Subsection (7) of that clause provides for a technical capability notice to specify the period within which the steps set out in the notice are to be taken by the relevant operator. In practice, it will often be the case that a notice will require the creation of new technical systems. The time taken to design and construct such a system, including developing new pieces of technical hardware and implementing appropriate security measures, may lead to different elements of the notice taking effect at different times.
Government Amendments 94 and 95 propose a minor change to subsection (7) of the clause to make it clear that, where appropriate, a notice will permit different steps required in the notice to be taken at different times. The amendment will provide clarity to operators and ensure that the Bill reflects what needs to happen in practice. The Government propose a further minor amendment to the notice-giving provisions, this time to Clause 229, which provides for the Secretary of State to vary or revoke technical capability notices and national security notices.
Amendment 106 reads across provisions in Clause 228 that provide for the primacy of national security notices over aspects of the Communications Act 2003. The amendment does not change the effect of the provision but would make explicit that, when a national security notice is varied under Clause 229, the obligations in the notice as varied continue to have primacy over obligations imposed by Part 1, or Chapter 1 of Part 2, of the Communications Act 2003. The amendment replicates a provision previously provided for in the Telecommunications Act 1984, as amended by the Communications Act 2003, and removes any ambiguity about how the obligations set out in a national security notice as varied relate to those provided for in relevant parts of the Communications Act 2003.
Lastly, the Government propose Amendments 107, 110, and 111 to Clause 230. This clause makes provision for a person to request a review of the requirements imposed on them in a technical capability notice, or a national security notice. A person may refer the whole or any part of a notice to the Secretary of State for review after a notice is given or varied. The Government amended the Bill in the other place to provide for the double lock to be applied to the giving of notices. This means that a judicial commissioner must approve the Secretary of State’s decision to give a notice. The amendments that we are now considering would revise the review process to reflect this new role.
The proposed revised process is as follows: before reaching a decision on the outcome of the review, the Secretary of State must consult a judicial commissioner and the technical advisory board. The technical advisory board, a group of experts drawn from telecommunications operators and the intercepting agencies, will be required to advise on the technical feasibility of the requirements set out in a notice and the costs. The judicial commissioner will consider the requirements imposed by the notice on proportionality grounds.
As was previously the case, the judicial commissioner and the technical advisory board will be required to provide an opportunity for the person to whom the notice has been given and the Secretary of State to present evidence or make representations. The conclusions of the judicial commissioner and the board will be reported to the person and the Secretary of State. After considering these conclusions, the Secretary of State may decide to confirm the effect of the notice, vary the notice or withdraw it. Where the Secretary of State decides to confirm the effect of a notice or vary a notice, the Investigatory Powers Commissioner must approve the decision. Until the commissioner has approved the review decision, there is no requirement for the person who has referred the notice to comply with the specific obligations under review.
These amendments will strengthen the review process and will properly reflect the role of a judicial commissioner in approving the decision to give a notice. I hope the Committee will feel able to accept these amendments, and I beg to move.
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have three amendments in this group. As a means of probing concerns about both national security notices and technical capability notices, we are suggesting that Clauses 225 and 226 stand part of the Bill, but we propose, in Amendment 92, that the provision in Clause 226(5)(c),
“obligations relating to the removal by a relevant operator of electronic protection applied by or on behalf of that operator to any communications or data”,
be deleted. These provisions are some of the most concerning for communications companies and the technology sector in the UK as they appear to provide open-ended and unconstrained powers, although I accept that the amendments that the Government have put forward today, as outlined by the Minister, provide significantly more oversight than was originally suggested in the Bill.
National security notices can require a communications provider in the UK,
“to carry out any conduct, including the provision of services or facilities, for the purpose of”—
this is in Clause 225(3)(a)(i)—
“facilitating anything done by an intelligence service under any enactment other than this Act”.
So the power is not limited to facilitating the use of powers under the Bill but any other legislation as well. The power is to do anything that the national security notice requires.
Technical capability notices enable the Government to require communications operators to comply with any “applicable obligations” specified in the notice, and the recipient must not only comply but must not disclose that they have been served with the notice, seemingly including, under Clause 226(5)(c), to remove encryption. However necessary or proportionate such notices may be—and I accept that, with the double lock now in place, that will be tested—there could be a suspicion that UK communications companies and the UK technology sector are subject to such notices, undermining customer confidence in the security of the network or device that they are using.
Although such a notice may be served to persons outside the UK, and may require things to be done outside the UK, such notices are not legally enforceable outside the UK. As well as undermining public confidence in the security of UK networks and technology, such notices have the potential to act as a competitive disadvantage to UK technology businesses. Instead of the power to force a company to remove encryption from a whole service or technology, alternative and more targeted powers should be used instead.
Lord Harris of Haringey (Lab)
My Lords, first, I should draw attention to my interests in the register on policing and counterterrorism matters. Secondly, I should make clear that my starting point on the Bill is that it is important that the developing gaps in access to communications data are addressed to protect the nation against all sorts of threats.
In any set of counterterrorism or counterespionage measures, or whatever else it might be, you have to look at the balance and weigh the benefit to the nation in protecting its citizens by having those powers against the potential downside or consequences of exercising them.
When we come to the question contained in this group of amendments—essentially about enabling or requiring companies to break the apparent encryption—we have to look carefully at the potential downsides presented by this. The first downside, or danger, is that by enabling this to happen—by creating the mechanism and requiring companies, as my noble friend Lady Hayter said, to make new arrangements so that encryption can be broken—you create a back-door mechanism. This would be available not just to the forces of good—those who are trying to protect all our security—but to cybercriminals and those who would do us ill. Therefore you need to weigh clearly what you are trying to do against whether you are creating something that will make it easier for criminals and those who would do us harm.
The second element is the extent to which what we do in this country sets a precedent that will be seized in other countries, whose interests may not be the same as ours or as positive as ours towards their citizenry. If we create that precedent, what is to prevent Governments in other countries saying that they want the same powers and therefore doing the same? That test has to be applied to quite a number of the measures in the Bill. As I say, my starting point is that I want the state to be able to fill the gap in its access to communications data that is emerging and opening up. However, I want to hear from the Government a clear explanation of why in this set of cases the benefits outweigh the potential disbenefits.
Earl Howe
My Lords, a number of amendments here separately seek to remove the encryption provisions from Part 9 or propose modifications to them.
I will begin with Amendments 92, 102 and 103, which propose removing the encryption provisions from Clauses 226 and 228. If these are anything other than probing amendments, I have to say that they are irresponsible proposals, which would remove the Government’s ability to give a technical capability notice to telecommunications operators requiring them to remove encryption from the communications of criminals, terrorists and foreign spies. This is a vital power, without which the ability of the police and intelligence agencies to intercept communications in an intelligible form would be considerably diluted.
Let me be clear: the Government recognise the importance of encryption. Encryption keeps people’s personal data and intellectual property secure and ensures safe online commerce. The Government work closely with industry and businesses to improve their cybersecurity. However, law enforcement and the intelligence agencies must retain the ability to require telecommunications operators to remove encryption in limited circumstances—subject to strong controls and safeguards—to address the increasing technical sophistication of those who would seek to do us harm.
Encryption is now almost ubiquitous and is the default setting for most IT products and online services. If we do not provide for access to encrypted communications when it is necessary and proportionate to do so, we must simply accept that there can be areas online beyond the reach of the law, where criminals can go about their business unimpeded and without the risk of detection. That cannot be right.
These provisions simply maintain the current legal position in relation to encryption and go no further. They retain the ability of law enforcement and the security and intelligence agencies to require companies to remove encryption that they have applied, or that has been applied on their behalf, in tightly prescribed circumstances. It would not—and under the Bill could not—be used to ask companies to do anything that it is not reasonably practicable for them to do.
The safeguards that apply to the use of these provisions have been strengthened during the Bill’s passage through Parliament. First, the “double-lock” authorisation process now applies to the giving of notices, which means that a judicial commissioner must approve the Secretary of State’s decision to give a notice. The Secretary of State must also consult the relevant operator before a notice is given. The draft codes of practice, which were published alongside the introduction of the Bill, make clear that should the telecommunications operator have concerns about the reasonableness, cost or technical feasibility of any requirements to be set out in the notice—which includes any obligations relating to the removal of encryption—it should raise them during the consultation process. Furthermore, the new privacy clause in the Bill requires that regard be given by the Secretary of State to the public interest in the integrity and security of telecommunications systems when deciding whether to give a technical capability notice.
Lord Paddick
Can the Minister comment on the fact that increasingly, encryption is end-to-end, and can he say whether national security notices and technical capability notices would be of any use in circumstances where people were using end-to-end encryption? Can he also comment on a suggestion that instead of these notices, targeted equipment interference would be more useful in that it could deal with the problem of end-to-end encryption?
Earl Howe
Certainly, targeted equipment interference is, if you like, the next step should interception not be possible for any reason. However, I will answer the noble Lord’s first question, on end-to-end encrypted services. We start from the position that we do not think that companies should provide safe spaces to criminals to communicate. They should maintain the ability, when presented with an authorisation under UK law, to access those communications. We will work with industry to ensure that, with clear oversight and the legal framework I have in part alluded to, the police and intelligence agencies can access the content of terrorists’ and criminals’ communications when a warrant has been approved in the usual way.
We will of course consider what steps are reasonably practicable for an individual telecommunications operator, taking account of a range of factors, including technical feasibility and likely cost. We recognise that what is reasonably practicable for one telecommunications operator may not be for another, so any decision will have regard to the particular circumstances of the case. However, I cannot go into our relationships with individual companies, as the noble Lord will understand. It is important to understand that the Bill does not ban encryption or do anything to limit the use of fully encrypted services.
Lord Strasburger
I thank the Minister for giving way. I think this is the first time I have heard the Government admit that the phrase “removal of electronic protection” does in fact refer to encryption.
I want to emphasise—and anybody in the cryptography industry will spell this out—that you cannot have it both ways. Either encryption is secure, or it is not; it cannot be insecure for a small group of users and secure for everybody else. Once encryption is weakened, it is weakened for everyone and once this is done at the request of the Government, it is available to all the people I listed earlier who would do us harm. I would also point out that there are a myriad of encryption products available outside the UK—ISIS has its own set, and I have seen the manual. There are any number of ways that people who want to use encryption for malign purposes can acquire it and use it in a way that UK companies cannot break.
Lastly, when I was at GCHQ, it seemed fairly relaxed about the threat of encryption because it is very confident that it can use the other means we have referred to, such as equipment interference, to get the unencrypted data it wants. But the main point, which the Government really do have to take on board, is that encryption is either strong or it is not. It cannot be partially strong—that is, strong for most and weak for the Government.
Earl Howe
I shall of course reflect on those points, which I was already aware of. It is important to emphasise that any encryption arrangements that a communications service provider has not itself applied, or had applied on its behalf, would almost inevitably fall outside these provisions because it would not be reasonably practicable for the company to de-encrypt. Many of the biggest companies in the world rely on strong encryption to provide safe and secure communications and e-commerce, but nevertheless retain the ability to access the contents of their users’ communications for their own business purposes—and, indeed, those companies’ reputations rest on their ability to protect their users’ data. In many cases, we are not asking companies to do something that they would not do in the normal course of their business, but I note what the noble Lord has said.
Amendment 93 deals with the subject of end-to-end encryption more specifically. This matter was discussed in detail in another place, so I will reiterate what was said there to explain why this is not an appropriate amendment. I have already outlined the strict safeguards that will apply. This amendment is not necessary because the Bill makes absolutely clear that a telecommunications operator would not be obligated to remove encryption where it is not reasonably practicable for it to do so. It is important to highlight that the amendment would in many cases prevent our law enforcement and security and intelligence agencies from being able to work constructively with telecommunications operators as technology develops to ensure that they can access the content of terrorists’ and criminals’ communications. Depending on the individual company and circumstances of the case, it may be entirely sensible for the Government to work with them to determine whether it would be reasonably practicable to take steps to develop and maintain a technical capability to remove encryption that has been applied to communications or data. But the amendment would signpost to terrorists and criminals that there are communications services they can use to communicate with each other unimpeded and which the authorities will never be able to access. That cannot be right.
Amendments 108 and 109 propose changes to Clause 230, which provides for a telecommunications or postal operator to request a review by the Secretary of State of the obligations imposed on it by a technical capability notice or a national security notice. The Secretary of State must seek the views of the Technical Advisory Board—a group of experts drawn from the telecommunications operators and the intercepting agencies—and the Investigatory Powers Commissioner before deciding the review.
Amendment 109 seeks to insert the double-lock authorisation process into that review. I contend that this is unnecessary. The Government have an amendment which provides that the Secretary of State must initially consult the judicial commissioner on proportionality, and that the Secretary of State’s decision following the review must be approved by the Investigatory Powers Commissioner. As I have explained, if after consulting the commissioner and the Technical Advisory Board, the Secretary of State decides to confirm the effect of a notice or vary it, the Investigatory Powers Commissioner must approve that decision, so the amendment is not required.
Amendment 108 seeks to require the Technical Advisory Board to consider the consequences for others likely to be affected by obligations imposed by a notice. This proposal was first raised in the other place and, following discussion, considered to be unnecessary. I will briefly explain why. First, the Technical Advisory Board has a very specific role to play in advising the Secretary of State on cost and technical grounds. This role is reflected in its membership. Board members are drawn from the telecommunications industry and those persons entitled to apply for warrants and authorisations under the Bill. These experts are well placed to consider the technical requirements and the specific financial consequences of the notice. If they consider it appropriate, they may look beyond cost and technical feasibility, but those factors are rightly their focus.
The responsibility for considering the broader effect of the notice on the operator to whom it has been given sits with the judicial commissioner, and it is right that the commissioner has this role. As part of any review into the obligations set out in a notice, the commissioner must report on their proportionality. This would include an assessment of its consequences, both for the person seeking the review and for anyone else affected by it. Furthermore, the clause requires the commissioner to seek out the views of the person who has received the notice. The person will have an opportunity to raise any concerns regarding the effect of the notice with the commissioner for consideration, and the commissioner must report his or her conclusions to the person and the Secretary of State. In my view, and as concluded following discussion in the other place, the Investigatory Powers Commissioner is rightly placed to carefully assess proportionality as a whole. The amended wording would introduce unnecessary duplication and ambiguity over what the board and Investigatory Powers Commissioner are each considering.
Finally, allow me to turn to another part of the Bill. I welcome the intent of Amendment 129, which seeks to clarify the scope of the restrictions on the acquisition of internet connection records. The clarity that noble Lords intend to create with this amendment is already provided in the code of practice, and I hope I can reassure noble Lords that there are good reasons why this definition should not appear in the Bill. The Bill already contains definitions of “telecommunications service” and “communication” which make very clear that a communication can include messages between individuals, between individuals and machines, and between machines. This maintains the existing position in RIPA, and it is absolutely right that the powers and, indeed, safeguards in this Bill apply to all forms of communication.
Taken in its broadest sense an “internet communications service” is simply a telecommunications service that involves communication over the internet and it should rightly include all forms of internet communication. But in the context of internet connection records the term is used to mean services that facilitate communications between two or more individuals, like email or social networking websites. An “internet service”, by contrast, is any other communication service a person could connect to over the internet, including person to machine communications, such as a person accessing a website. This distinction is made clear in the code of practice, which is the appropriate place for it because the definition has a different meaning in other contexts in the Bill.
I hope that noble Lords will be reassured that the definition is contained in the code of practice. We are concerned that defining “internet communications service” on the face of the Bill in the way proposed could cast doubt on the scope of the Bill in so far as it applies to internet communication services more generally. For all the reasons that I have set out, I ask noble Lords not to press their amendments.
Lord Harris of Haringey
My Lords, can the Minister clarify for me—I am sure that other noble Lords have got to the point precisely—that the requirements that the Bill seeks to create will apply only where a service provider has offered a service which most people might assume is secure and encrypted but has built in an existing arrangement which allows it to access it? Would it apply only in those circumstances? If that is not the case, perhaps the Minister could explain in what other circumstances it might apply. Can he further tell us whether there is an expectation in the Bill that, where a service provider is developing a new service, it must ensure that it has the facility to access what the user would assume are encrypted data?
Earl Howe
The answer to both questions is that it depends on what is reasonably practicable for the communications service provider. The power will apply usually to encryption that the provider has applied or has been applied on its behalf. If there are other circumstances where it would apply, I will take advice and write to the noble Lord, but we come back to what is reasonably practicable for the company. It is why the Government maintain a dialogue with communications service providers to ascertain what is practicable and what is not, and what would be cost effective and what would not be. However, broadly speaking, the noble Lord was right.
Lord Harris of Haringey
I am sorry to press the point, but I need to understand it. I understand the Minister’s answer in respect of the requirement applying where it is reasonably practicable because the encryption arrangement has been applied by the service provider, but is he saying that there is an expectation that in building new services a service provider should create something where it is technically possible for it to undermine that encryption? If so, that would raise a very different point which is important to clarify. Is the service provider required to make it technically practicable in future services as it develops them for this to be allowed?
Earl Howe
It might be, but it might not be. Again, it depends on what is reasonably practicable in the particular circumstances. Those circumstances might vary from provider to provider and from situation to situation, so it is not possible for me to generalise about this, but I will take further advice and write to the noble Lord about it.
Baroness Hayter of Kentish Town
My Lords, the Minister spoke about what is possible and reasonable, but the point of our Amendment 93 is that a notice may not impose the requirement to build a facility that would break end-to-end encryption. We may need to return to this on Report, but it would perhaps be useful to have a discussion between now and then about imposing the requirement to build capacity to break end-to-end encryption.
Lord Strasburger
I fear that the Minister is taking himself down a long cul-de-sac here, because the implication of what he is saying is that no one may develop end-to-end encryption. One feature of end-to-end encryption is that the provider cannot break it; encryption is private between the users at both ends. He seems to be implying that providers can use only encryption which can be broken and therefore cannot be end to end, so the next version of the Apple iPhone would in theory become illegal. I think that there is quite a lot of work to be done on this.
Earl Howe
I was certainly not implying that the Government wished to ban end-to-end encryption; in fact, we do not seek to ban any kind of encryption. However, there will be circumstances where it is reasonably practicable for a company to build in a facility to de-encrypt the contents of communication. It is not possible to generalise in this situation. I am advised that the Apple case to which the noble Lord referred could not occur in this country in the same way.
Lord Harris of Haringey
Is the Minister therefore saying the Government’s expectation is that service providers will in future ensure that it is reasonably practicable for them to access those communications? If that is the case, I think that he is raising a whole new group of issues.
Earl Howe
The Bill is clear that any attempt to obtain communications data must be necessary and proportionate, or it will not be permitted. It is crucial that the Bill provides a robust, legal framework which means that the law is consistently applied correctly. That is why we are introducing the double lock involving judges signing off warrants for the most intrusive powers, which means that the Secretary of State’s decisions, other than in the most urgent cases, will be independently scrutinised before warrants can be issued. I come back to the central point here, which relates to encryption: we do not think that companies should provide safe spaces to terrorists and other criminals in which to communicate. They should maintain the ability when presented with an authorisation under UK law to access those communications.
(a) ”
(a) ”
“( ) But the Secretary of State may vary the notice, or give a notice under subsection (9)(b) confirming its effect, only if the Secretary of State’s decision to do so has been approved by the Investigatory Powers Commissioner.”
“Approval of notices following review under section 230
(1) In this section “relevant notice” means—(a) a national security notice under section 225, or(b) a technical capability notice under section 226.(2) In deciding whether to approve a decision to vary a relevant notice as mentioned in section 230(9)(a), or to give a notice under section 230(9)(b) confirming the effect of a relevant notice, the Investigatory Powers Commissioner must review the Secretary of State’s conclusions as to the following matters—(a) whether the relevant notice as varied or confirmed is necessary as mentioned in section 225(1)(a) or (as the case may be) section 226(1)(a), and(b) whether the conduct required by the relevant notice, as varied or confirmed, is proportionate to what is sought to be achieved by that conduct.(3) In doing so, the Investigatory Powers Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matters referred to in subsection (2) with a sufficient degree of care as to ensure that the Investigatory Powers Commissioner complies with the duties imposed by section 2(general duties in relation to privacy).(4) Where the Investigatory Powers Commissioner refuses to approve a decision to vary a relevant notice as mentioned in section 230(9)(a), or to give a notice under section 230(9)(b) confirming the effect of a relevant notice, the Investigatory Powers Commissioner must give the Secretary of State written reasons for the refusal.”