Tuesday 11th October 2016
(8 years, 1 month ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 62-I(Rev)(a) Amendment for Report, supplementary to the revised marshalled list (PDF, 51KB) - (11 Oct 2016)
16:46 - Division on Amendment 15 - Ayes: 282 / Noes: 180 - Amendment 15 agreed.
Baroness Hamwee (LD)
My Lords, I hesitated because I thought the Minister might wish to introduce the government amendments before I spoke to mine, as I think one of mine may be an amendment to one of his. We on these Benches support the noble Lord, Lord Janvrin, on Amendment 1. It would provide a very clear statement of purpose for the Bill, and one which would be very useful. The Lord Advocate said in Committee that an amendment similar to this would not add value. On the contrary, it would add value by giving that statement of purpose. The first clause is badged as an overview of the Act. In fact, what it does is to list the different parts of the Act and give an overview of each of them. The clause does not give an overview of the Act; the noble Lord’s amendment would do so, and the clause would live up to its name.
We have Amendments 8, 9 and 12 in this group. Amendment 8 would provide that the powers should not be used if the objectives could be achieved by other, less intrusive means. This, too, was an amendment that we debated in Committee. The Bill provides that regard must be had to the possibility of achievement by other, less intrusive means. My noble friend Lord Lester of Herne Hill apologises that he cannot be here today—although I am not sure whether one should apologise for an illness. He has kept me up to date with his position. He talked about the “rubbery” quality of the term “have regard to”. This amendment would make the obligation an absolute one—but not an unreasonable one, because the term “reasonably”, as in,
“could reasonably be achieved by other less intrusive means”,
is included. My noble friend Lord Lester referred to this as,
“classic principle of proportionality language”.—[Official Report, 11/7/16; col. 53.]
I was pleased that, on that occasion, we had the support of my noble friend Lord Carlile of Berriew, who said that the wording,
“would be more useful and more certain”,
than that with which he was comparing it, and that, above all, it would,
“avoid unnecessary disputes about the meaning of and compliance with Article 8”—
that is, Article 8 of the convention—
“in the courts”.—[Official Report, 11/7/16; col. 54.]
My noble friend Lord Lester had painted a rather gloomy picture of the problems that could arise if the legislation was not absolutely clear.
The noble Earl agreed to consider the proposition. He referred to the use of the wording in codes of practice. My noble friend Lord Carlile, who was more polite than I was about problems with codes of practice, said that he supported the amendment because it would be preferable to have the words in the Bill,
“rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty”.—[Official Report, 11/7/16; col. 56.]
Both my noble friends have very considerable experience of arguing the case—no doubt both ways—in the courts. I am not sure whether the Government’s Amendments 10 and 11 are intended to address the point that we were debating. I am sure I will be told.
Our other amendment, which I will have to speak to now because we are on Report, is an amendment to government Amendment 11. I welcome government Amendments 10 and 11, but I am a bit uneasy about intrusiveness being gauged against the sensitivity of the information. My point is a wider one: everyone in every case should expect the least intrusive means to be tried first. Amendment 12 to government Amendment 11 is tabled to understand whether everything in Amendment 11 falls within Amendment 10. We have wording in Amendment 10 about the “particular sensitivity” of information. Amendment 11 gives examples of “sensitive” information. Are there, therefore, two hurdles to be crossed: “sensitive” and “particular sensitivity”? Amendment 12 seeks to understand how the two amendments relate to one another.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, the noble Lord, Lord Janvrin, has again spoken persuasively on the importance of making clear that privacy is at the heart of the Bill. The amendment tabled in his name, on behalf of the Intelligence and Security Committee of Parliament, serves to reinforce that point and provide greater clarity. He will be pleased to know that, on that basis, I am happy to support it.
Included in this group are a number of government amendments. Clause 2 brings together in one place at the front of the Bill the considerations a public authority must have regard to, and the duties that apply, when exercising a power provided by this Bill.
Amendments 2 through to 7 are technical amendments to ensure that the obligations under Clause 2 continue to “bite” in relation to the roles of judicial commissioners under the Bill as amended in this House. Some of these could be seen as consequential to amendments that we shall discuss in the coming days. If the House will allow, I do not believe that it would be helpful to expand on them here, save to say that the Government propose to introduce greater protections in respect of the retention of communications data and the treatment of sensitive professions under the Bill. Where those protections create a role for judicial commissioners, the amendments will again ensure that the duties imposed by Clause 2 continue to apply in respect of the commissioners’ expanded remit.
“(aa) whether the level of protection to be applied in relation to any obtaining of information by virtue of the warrant, authorisation or notice is higher because of the particular sensitivity of that information,”
“( ) For the purposes of subsection (2)(aa), examples of sensitive information include—(a) items subject to legal privilege,(b) any information identifying or confirming a source of journalistic information, and(c) relevant confidential information within the meaning given by paragraph 2(2) of Schedule 7 (certain information held in confidence and consisting of personal records, journalistic material or communications between Members of Parliament and their constituents).”
Lord Rosser (Lab)
As I understand the situation, the Independent Reviewer of Terrorism Legislation, David Anderson QC, was consulted by the Government on whether it would assist him in his role if he had the support of a privacy and civil liberties oversight board. The outcome was that the independent reviewer is now supported instead by the provision of specialist legal assistance, as David Anderson himself recommended in his 2014 annual report.
David Anderson announced the appointment of three specialist advisers, whom he had personally selected, earlier this year and to the best of my knowledge the independent reviewer has welcomed that approach. Given the measures in this Bill, including provision for the Investigatory Powers Commissioner and his or her role in protecting civil liberties, and the changes made as a result of recommendations of the different independent committees which looked at the Bill as originally worded—including a Joint Committee of both Houses—and the further changes and commitments made both during the Bill’s passage through the Commons, which led to us voting for it at Third Reading, and in this House, it is not clear what an additional board would positively contribute. We cannot support the amendment.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, it may appear that there is little I can add, but I have my brief.
Considerable praise has been expressed throughout the passage of this Bill for the work of David Anderson QC, whose report, A Question of Trust, provides the backdrop to this legislation and whose subsequent review of the operational case for bulk powers has informed our scrutiny of Parts 6 and 7. There can be no doubt about the importance of Mr Anderson’s office, that of the Independent Reviewer of Terrorism Legislation.
Following the passage of the Counter-Terrorism and Security Act 2015, which has been alluded to, the Government undertook a consultation on whether David Anderson would benefit in his role from the support of a privacy and civil liberties oversight board. Having been informed by a public consultation on the board’s establishment, by David Anderson’s own recommendations on this matter and by the need to ensure the best value for public money, the Government decided that they could most effectively support the reviewer in discharging his statutory functions by instead providing him with specialist legal assistance in the form that he himself recommended—as noted by the noble Lord, Lord Rosser.
Baroness Hamwee
My Lords, this will be, I hope, short and uncontentious. The amendment was suggested to us by the Law Society of Scotland. It seeks clarification and, of course, an amendment if one is required to achieve the point.
Clause 7 introduces Schedule 1 to the Bill and provides for “Monetary penalties for certain unlawful interceptions”. Under paragraph 4(4) of Schedule 1, a person who is the subject of a penalty notice may,
“request an oral hearing before the Commissioner in order to make representations”.
Our amendment would provide that such a person may have legal representation to assist with those representations.
The Law Society of Scotland says that,
“given the nature of the Bill and from an equality of arms perspective, legal representation should be available as a right”.
I would say that legal representation should generally be available, whatever the Bill, whether it is 10 pages or 250-plus pages and complicated. It is an important point to clarify. There is no provision which says there may not be legal representation, so it may be that this can be dealt with outside the Bill; certainly, there should be no block on it. I hope that the Minister will be sympathetic to the point. I beg to move.
Earl Howe
My Lords, I trust I can deal with this amendment with a degree of brevity equal to that employed by the noble Baroness. I reassure her that the amendment is not necessary. It is already the case that a person on whom a monetary penalty notice has been served who requests an oral hearing before the commissioner can be legally represented at the hearing. There is nothing in the Bill that would preclude such representation, and of course it will be up to the person on whom the notice is served to choose whether or not they wish to be so represented. Therefore, what is intended by the amendment is already provided for. Accordingly, I hope the noble Baroness will feel comfortable in withdrawing the amendment.
Baroness Hamwee
I am grateful for that assurance. The point is that it is not provided against, rather than that it is provided for. I dare say somebody will be writing rules about these hearings at some point, so I am glad to have that assurance on the record. I beg leave to withdraw the amendment.
Lord Rosser
I will be brief, as the noble Baroness, Lady Hollins, and other noble Lords, including my noble friend Lord Prescott, have set out the case for and reasoning behind the wording of the amendment in very clear terms. Section 40 of the Crime and Courts Act 2013 was part of the cross-party agreement, which included the royal charter, which was signed by the then leaders of the Conservative, Labour and Liberal Democrat parties. As a result, amendments were withdrawn both in the Commons and in this House. Ministers subsequently continued to make explicit commitments in both Houses to bring in Section 40. They have, however, failed to honour that commitment, and have thus not implemented this part of the 2013 Act, in accordance with the wishes of both Houses and indeed, the previously declared intention of the Government. We will support the amendment if the noble Baroness, Lady Hollins, having heard the Government’s response, decides that she still needs to test the opinion of the House.
Earl Howe
My Lords, we discussed this issue in Committee when the noble Baroness tabled an amendment seeking to introduce a cause of action which would allow victims of unlawful interception to bring a civil claim. As she is aware, the Investigatory Powers Bill already contains a criminal offence where a person intercepts, without lawful authority, a communication in the course of its transmission via a public or private telecommunications system or a public postal system.
The cause of action, or tort, provided for in Clause 8, is intended to replicate the safeguard which existed in the Regulation of Investigatory Powers Act 2000. This focuses on circumstances where an individual’s communications are intercepted on a private telecommunications system by a person who has the right to control the operation or use of that private telecommunications system. This was a necessary safeguard to protect individuals in very limited circumstances where their employer may unfairly be intercepting communications on a company’s internal computer system, which is not within the scope of the offence of unlawful interception.
This provision was not intended to provide a route for anyone who believed their communications had been unlawfully intercepted to bring a civil case. As we have seen in recent times with the phone hacking cases brought by a number of individuals against media organisations, the appropriate civil routes of redress already exist, for example, for misuse of private information.
I fully understand that many noble Lords here, particularly those who have been victims of press abuse themselves, are frustrated as to what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report. I want to reassure noble Lords that that is not the case. The Government, as has been said, have implemented the vast majority of Leveson’s recommendations for reforming press regulation. Importantly, they have set up and are funding the Press Recognition Panel, which is currently considering an application for recognition from the self-regulator IMPRESS.
The exemplary damages provisions have been commenced in line with the date set out in the 2013 Act. However, it is important to make clear to the House that no specific date was set for the commencement of the Section 40 costs provisions. Notwithstanding that, the Government continue to look at this issue closely. Indeed, to better understand the issue, my right honourable friend the Secretary of State for Culture, Media and Sport and the Minister for Digital and Culture met Hacked Off and victims of press abuse as their first priority. DCMS officials met Hacked Off at official level again only last week. So this is something that the Government are actively considering. I suggest to the House that it is not unreasonable for Ministers who are new in post to take time to understand the issues at play. The position is that, for the time being, Section 40 remains under consideration.
We should also bear in mind that no recognised regulator is yet in place, although I realise that that could change on 25 October when the Press Regulation Panel rule on IMPRESS’s application. Regardless of the panel’s decision, it is true to say that the press landscape has undergone a huge amount of change over the last four years and the Government need to be sensitive to that. A crucial part of Section 40, for example, is around ensuring both sides have access to low-cost arbitration as an alternative to expensive litigation. The arbitration scheme run by IMPRESS is relatively new, while IPSO is currently trialling an arbitration scheme to better understand how it could work effectively. Given the importance of arbitration to making Section 40 operate effectively, it would also be useful to see how both IMPRESS’s arbitration scheme and IPSO’s arbitration pilot work in practice.
I return to the specifics of the amendments which the noble Baroness has tabled.
Lord Prescott
When Secretary of State Whittingdale went to the editors’ conference and told them, “We are minded not to implement this”, was that government policy or his policy—and is the Minister’s policy any different?
Lord Rooker
That being said, can I follow up my noble friend’s question? The Minister listed groups that have asked the Government to implement Section 40. Is there an individual or group that has requested the new Government not to implement it?
Earl Howe
I am not aware of that, but I can seek advice and let the noble Lord know when I have received it.
I do not believe that the amendments that the noble Baroness has tabled will achieve the outcome that she seeks. This clause deals with the interception of private telecommunication systems, such as a company’s internal email or telephone system. That is not, I think, what the noble Baroness is driving at, so I do not believe the amendment would be capable of being used as she intends.
That reflects a broader point that these issues should not really be dealt with in this Bill. I am all too well aware that many people suffered terribly at the hands of unscrupulous members of the media, and I have a great deal of sympathy with the noble Baroness, whose family, I know, suffered unspeakable wrongdoing by people who called themselves journalists. While we all agree that the outcome of Leveson and the proper regulation of the media are clearly important matters, the powers for law enforcement and the security and intelligence agencies provided in this Bill are vitally important, too. It is not right to try to deal with serious but largely unrelated matters in a Bill of this vital national interest.
Lord Oates (LD)
Is the Minister aware that very few people in this House think that this is the ideal way in which to deal with the issue? They think that the ideal way in which to deal with it is to implement Section 40. Is he also aware that, when he says that the Government have implemented many of the aspects of Leveson, the implementation of Section 40 was regarded as absolutely critical to the system working? It was not put in the Bill at the Government’s discretion; it was put in and regarded at the time by all the party leaders, who gave solemn undertakings to the victims, as absolutely critical.
Earl Howe
I accept the point that the noble Lord made about the agreement made in 2013 on a cross-party basis. If the noble Baroness chooses to withdraw the amendment, the clear message given out by the debate will not be lost on my right honourable friend the Secretary of State as he considers these matters.
What we have here is an attempt to insert a clause into a Bill that just happens to be passing to force an issue that has no direct bearing on the Bill in question, and I question whether that is an appropriate thing to do. Mechanisms are provided for in both Houses of Parliament to debate subjects of particular interest to parliamentarians, and perhaps that would be a better route by which to raise these matters.
I hope that I can reassure the noble Baroness that the Government continue to look closely at the cost provisions in the Crime and Courts Act, and respectfully urge her to withdraw the amendment and allow the Government to consider the issue thoroughly.
Baroness Hamwee
My Lords, this might be a mouse after the last amendment but it is not unimportant. It is about transparency—and perhaps more than transparency. It is about positively putting information into the public domain and not simply providing information which can be looked through. It is, if you like, a companion to the very welcome privacy clauses in the Bill. It is intended to help the citizen understand what is going on and to enable operators to put into the public domain the warrants and so on with which they have to deal. It provides that they will not commit an offence by disclosing not details but the number of warrants, the number of accounts and the number of warrants complied with, going back only for a limited period of six months. The second limb of the amendment —that they can do more, or more can be done by whoever, if the Secretary of State agrees it—should go almost without saying.
I am told, and would welcome confirmation if the Minister can give it, that the Government are considering regulations to introduce a clear framework for transparency and that provisions such as this might fall within those. To that extent, my amendment is a probing amendment.
User transparency around engagement with law enforcement and government agencies is a key component of accountability to users. It is a prerequisite too, I would say, of redress. Given that the Government are committed to greater transparency than we have had hitherto through this Bill, and to this being a world-leading piece of legislation, I hope that they will be sympathetic to the provisions proposed. The amendment would permit providers to publish statistical data and would complement the Investigatory Powers Commissioner’s annual report, looking at the issues through a different lens and from another perspective. I beg to move.
Lord Keen of Elie
My Lords, it is the Government’s view that a new public reporting clause, as proposed by this amendment, is unnecessary. I will seek to explain why.
Clauses 55 and 125 already provide for the Secretary of State to make regulations that will permit operators to report information in relation to the number of interception and equipment interference warrants they have given effect to. Furthermore, the Government have proposed amendments to these clauses to give more flexibility to permit operators to publish greater statistical information about the warrants they have received. In response to a point made by the noble Baroness, Lady Hamwee, I can tell the House that it is the Government’s intention that the regulations will permit companies to publish details relating to the number of warrants they have given effect to and the number of customer accounts to which these warrants refer.
However, as was previously discussed in Committee, we need to be very careful about any exemptions to prohibitions on revealing sensitive information and the extent to which they might reveal the capabilities of the agencies. It is already the case that terrorists and criminals change their behaviour and the means they use to communicate to evade detection, and we must not give them further information that would help them to do so.
The Secretary of State must have the ability to protect the technical capabilities deployed by law enforcement and the security and intelligence agencies by setting out the way information relating to warrants may be reported—for example, the time period between being served with a warrant and publication of that information, or the bandings to be used for reporting on the numbers of warrants received. It is our view that the level of detail required is appropriate for such conditions to be provided for in regulations, not in the Bill.
The Government will of course continue to work closely with telecommunications operators on their transparency reporting. We have already discussed the proposed content of the draft regulations with them. Indeed, the government amendments to Clauses 55 and 125 reflect our efforts to address issues raised by operators in response to this consultation. Of course, also, the regulations issued under Clauses 55 and 125 will in due course be subject to parliamentary scrutiny.
It is therefore our view that the Bill and the Government amendments already provide for what these amendments seek, in in a way that allows companies to be transparent and the Government to protect sensitive capabilities. Accordingly, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I thank the noble and learned Lord for that response. What we are really being told is that the fleshing out of transparency provisions that I seek is in train. I of course understand points such as the need to consider exceptions.
I am prompted by this to mention a question that I should perhaps have asked the Government a little while ago, but I think all noble Lords will be interested. I am not expecting the noble and learned Lord to respond to this instantly, but we would all be interested to know the timetable for introducing regulations. We know there is a deadline of the end of this year because of DRIPA coming to the end of its natural life, but I assume the Bill cannot operate without a lot of secondary legislation. I wonder whether there could at some point be an indication of not only how the Government propose to deal with regulations but how the House, which is generally very supportive of the thrust of the legislation, despite one or two bits and pieces, can be helpful without losing its proper role of scrutinising regulations.
I should not perhaps take time on Report to be as pompous as that sounds. It is intended to be both an inquiry and an expression of concern about a matter that is for Parliament, not just the Government. Having said that, and welcoming the information about the work going on on this subject, I beg leave to withdraw the amendment.
Lord Rosser
I, too, have sympathy with many of the points made by the noble Baroness, Lady Jones. If there were to be a requirement for reasonable suspicion in addition to requiring decisions to be necessary and proportionate, because the two are not the same thing, one could envisage a situation—for example, in a kidnap case—where it could make life rather more difficult. In such a case, it might not be known whether it was a kidnap or simply a person who had gone missing.
Lord Keen of Elie
My Lords, as indicated by the noble Baroness, the amendments would provide that a targeted interception or equipment interference warrant could be issued in the interests of preventing or detecting serious crime only where there was a reasonable suspicion that a serious criminal offence had been or was likely to be committed.
The amendments are simply not necessary. I assure the House that for a warrant to be issued for the prevention or detection of serious crime, a sufficiently compelling case will always be required. A speculative warrant could never be approved, so these amendments address a concern that is fundamentally misplaced.
The Bill already provides strict and robust safeguards that ensure that a warrant may be issued only where it is necessary and proportionate. That is a well-established test. This decision must be approved by both the Secretary of State and a judicial commissioner. I pick up a point made by the noble Lords, Lord Paddick and Lord Rosser: in the case of a warrant for the prevention and detection of serious crime, the test of necessity and proportionality simply could not be met where there was not a reasonable suspicion that a serious crime had been or was likely to be committed. In these circumstances, I invite the noble Baroness to withdraw the amendment.
Baroness Jones of Moulsecoomb
I thank the noble and learned Lord for his answer. I never tire of telling this House that I was targeted by the Met police, monitored by them and put on to a domestic extremist database with, I would argue, absolutely no cause. Noble Lords will forgive me if I do not quite believe that there are enough safeguards. Quite honestly, I wonder if in five or 10 years I will have the opportunity to come to Ministers and say, “I told you so”. However many safeguards are put in, without strengthening them and making them absolutely clear you leave the door open for abuse. We have seen it in the past. We know very well that part of this Bill’s meaning is to cover abuses of previous legislation. I am deeply unconfident about the safeguards proposed, as are other organisations outside the House. I beg leave to withdraw the amendment.
“and section 23(5) does not apply in relation to the refusal to approve the decision.”
Earl Howe
My Lords, I shall also speak to the other government amendments grouped here. These amendments relate to warrants: their scope, authorisation process and modification. I shall begin by discussing a number of amendments, many of which are minor and technical in nature.
Amendments 32 to 34 provide that a targeted interception warrant, targeted examination warrant or mutual assistance warrant authorising or requiring the interception or selection for examination of secondary data must specify the address, numbers, apparatus or other factors or combination of factors that are to be used for identifying the communications. This will bring the requirements for a warrant authorising the obtaining of secondary data into line with those warrants seeking to obtain communications. By “secondary data” I mean systems data attached to or logically associated with the communication that is capable of being separated from the remainder of the communication and which, if separated, would not reveal the meaning of the communication.
On Amendment 35, Clause 17 states that a warrant may relate to a person, organisation or set of premises, and Clause 29 goes on to set out requirements that must be met by warrants. Clause 29 already caters for the circumstances surrounding warrants intended for communications from or intended for any person, and for communications originating on or intended for transmission to any premises named or described in the warrant. This amendment makes a small change to include communications relating to an organisation within Clause 29.
Amendments 36, 261 and 272 are technical amendments that simply clarify that the communications described in a targeted interception warrant can include communications sent between anything owned, controlled or operated by the person or organisation specified in the warrant, including communications that are not sent by, or intended for, a person. This is nothing new and simply makes explicit the position in existing law. The amendments also clarify that any “premises” described in such a warrant include but are not limited to,
“land, movable structure, vehicle, vessel, aircraft or hovercraft”.
I thought it would assist the House if I gave an example of where such communications are crucial: gathering intelligence on the technical characteristics of military systems. This activity is vital to understanding, reducing and countering the threat to our interests around the world, including threats from foreign weapon systems in operational and strategic theatres, both directly through the understanding of the threat and through longer-term countermeasure development by the Ministry of Defence. It reduces the threat to our deployed and strategic forces—on the ground, at sea and in the air—and it is essential for keeping our Armed Forces safe, ensuring that they can operate effectively, and for providing options to protect our national interests.
As I speak, the RAF is deployed on counter-Daesh operations in the Middle East. Intelligence garnered from such signals or communications has played an important role in getting the RAF there and keeping it safe, in both the short and long term. The specifications that our aircraft and their on-board offensive and defensive systems have been built to were in large part shaped by the historic understanding of adversaries’ weapons capabilities. The long-term analysis of these data allows us to develop understanding of the way our adversaries operate, and assists in training and equipping our Armed Forces. It also informs deployment decisions, including risk assessment, force size and shape, and affordability. The way the world has changed over the past decade makes it more important than ever that we maintain this broad situational awareness so that, if our Armed Forces are required to provide support during a future global crisis, they are prepared and can be protected.
Given the global nature of these communications, the international nature of the arms trade and the inherent unpredictability of global instability, most warrants of this nature will relate to thematic subjects under Clause 17(2) such that relevant systems can be targeted wherever they are in the world. For example, if it is necessary to issue a warrant to obtain data emitted by military ships controlled by states posing a threat to the UK, the warrant must provide for data to be obtained from those ships irrespective of their location. However, as noble Lords will appreciate, the main purpose of this activity is to obtain information from and about systems, such as missile systems, ships, radar and aircraft. It is not about obtaining the private communications of individual people, whether in the UK or overseas. Nevertheless, the obtaining of the data and their subsequent handling, retention, use and destruction would always be subject to all the safeguards required by the Bill, as for any other targeted interception warrant. This includes the double lock of Secretary of State and judicial commissioner approval.
The activity that I have talked about here is crucial to our national security. It is activity that is already undertaken under existing law and it has always been the case that the Bill was intended to cater for it. These amendments simply make it absolutely clear that that is the case.
Amendment 39 is a minor amendment to correct the position whereby a competent authority outside the UK, such as a foreign law enforcement agency operating under a mutual assistance warrant, could make major or minor modifications to a warrant in an urgent case. It is not our intention that a competent authority outside the UK should be able to make major or minor modifications to an urgent mutual assistance warrant. Therefore, this amendment simply removes that ability for a competent authority outside the United Kingdom to make major or minor modifications to a mutual assistance warrant in an urgent case.
Similarly, Amendment 51 is a minor amendment which makes the definition of “interception subject” in Clause 38 simpler and clearer. There is no change in the meaning.
I turn to a series of amendments that seek to amend the clauses that relate to the approval of major modifications made in urgent cases. Amendments 49, 85, 88, 182, 199, 207 and 233 will reduce the time period within which a judicial commissioner must decide whether or not to approve the modification and notify the issuing authority of this decision from five working days to three. We have already debated equivalent amendments to the targeted provisions in the Bill. We heard during our previous debates how important it is for the security and intelligence agencies to have the operational agility to respond at speed to events in their efforts to keep us all safe. These provisions reduce the time available to judicial commissioners to consider whether to approve a major modification in an urgent case, bringing the period into line with that for the approval of urgent warrants in the Bill. These amendments act as a further safeguard in so far as they limit the time that a modification is in force without being subject to the full judicial commissioner double lock, while still allowing them sufficient time to undertake their deliberations.
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I have three amendments in this group—but, first, I thank the noble Earl for the amendment reducing the five-day period in the case of urgency regarding modifications so that it is in line with the urgent issue of warrants. He referred to agility; three days preserves agility as it requires a judicial commissioner to be slightly more agile. More importantly, it is consistent and sensible. We were puzzled during Committee as to why the very similar arrangements about urgency were not consistent with regard to the time period, so we are glad to have taken that step forward.
Two of our amendments, Amendments 40 and 41, also refer to modifications. Clause 34 refers to modifications using provisions about,
“adding the name or description of a person, organisation or set of premises”.
We would add “or varying” to “adding” because it seems that a variation may be as significant as—and in effect amount to—an addition. I acknowledge that under Clause 32, which defines major modifications, variations of “name or description” are included. But Clause 34, to which our amendments would apply, allows modifications which are “necessary” and “proportionate”. Do we actually have consistency here? I am worried that by not allowing for variations within the regime of major modifications, we might let some additions in through the back door.
Amendment 66 would amend Clause 96, which is about the subject matter of equipment interference warrants. There is no restriction on the use of targeted thematic equipment interference warrants, unlike bulk EI warrants, which can be used to obtain only overseas communications data or information and are available only to the security services. Under the clause, there is no limit to the size of,
“a group of persons who share a common purpose”—
although I accept that “common purpose” contains a natural limit—nor to what is meant by,
“more than one person or organisation”.
That has dictated where we have tabled this amendment, which suggests a limit of 50 persons for a single investigation. It is clearly an arbitrary figure but it is there to try to tease out, a little more than perhaps we were able to in Committee, how this will work and how it could not grow in the application to such an extent as to defeat what we see as the purpose of those provisions. So we are not of course wedded to 50 but we are wedded to finding out a little more about the operation of this.
Earl Howe
My Lords, I am most grateful to the noble Baroness for speaking to her amendments so clearly, as she always does. Perhaps I may first address Amendments 40 and 41, which relate to Clause 34. I do not believe that these amendments are in fact necessary. I agree that in circumstances where an agency seeks to add something to a warrant, that should be possible only where it is both necessary and proportionate. That is what the Bill provides, and that necessity and proportionality test applies whether a name or description is being added, or where a factor is being added.
However, I do not agree that a necessity and proportionality test is relevant where a name, description or factor is simply being varied. In such a case, the conduct authorised by the Secretary of State and approved by the judicial commissioner is not changing in substance. An example might be where an individual is identified initially by a nickname but their true identity subsequently becomes known. I will give another example, which I hope will reassure the noble Baroness. During Committee noble Lords expressed concern about warrants against premises. If an agency applies for a warrant against a premises at, let us imagine, 25 Acacia Avenue and it turns out that it actually intended to target 125 Acacia Avenue, in that sort of case the original warrant should be cancelled and the error reported to the Investigatory Powers Commissioner —and an entirely new warrant should be sought. So there are two types of variation, if I may put it that way. One, I suggest, should not require the process that the noble Baroness has suggested; the other also should not require the process because it should be subject to an entirely fresh warrant. I hope that that provides her with the necessary reassurance.
Turning now to Amendment 66, as the noble Baroness explained, the amendment seeks to limit the number of persons that a targeted examination warrant issued under Part 5 may relate to. The amendment would clearly mean that any individual targeted examination warrant that relates to multiple persons for the purposes of a single investigation or operation under Clause 96(2)(c) could not relate to more than 50 persons. I believe that inserting such an arbitrary limit would be a mistake—I know the noble Baroness realises that it is an arbitrary figure—and that it would not add to the strong safeguards already provided for in the Bill.
The decision on whether a warrant is necessary and proportionate is rightly one for the issuing authority and the judicial commissioner. There may be circumstances in which the case for examining the material of more than 50 persons is entirely proportionate to what is sought to be gained from that task. For example, if the security and intelligence agencies are investigating UK-based users of websites hosting illegal child pornography, it would be detrimental and dangerous to limit the number of people they could investigate to a particular figure. This could in some cases result in material relating to dangerous subjects of interest escaping entirely appropriate examination simply because they were past the relevant number that would be set out in statute if this amendment or something like it were accepted.
Mandating that a targeted examination warrant must not relate to more than 50 people would mean either that vital operations could not proceed or that the intelligence agencies would on some occasions need to submit multiple applications for warrants relating to a single investigation or operation. That would needlessly increase the bureaucratic burden placed upon the agencies and the issuing authority while also hampering the ability of the issuing authority and the judicial commissioner to consider the operation in full. Such a restriction would add no additional rigour to the already robust double-lock process.
Introducing an arbitrary restriction does nothing to ensure that the principles of necessity and proportionality are upheld, but the role of judicial commissioners, already provided for by the Bill, does. That is why the Bill requires both the issuing authority and the judicial commissioner to consider, on a case-by-case basis, whether the breadth of a warrant is appropriate without the imposition of indiscriminate limits. In summary, the amendment has the potential to be damaging, needlessly bureaucratic or both, and I invite the noble Baroness not to press it.
Lord Keen of Elie
Lord Keen of Elie
My Lords, the Government have listened carefully to concerns expressed in this House and by the legal profession about the protections in the Bill relating to material which attracts legal privilege, and in response to those concerns the Government propose a number of amendments.
We have already discussed the amendment to the privacy clause which makes it clear that a public authority must consider, when seeking a warrant or authorisation, whether additional protections apply because particularly sensitive material is to be obtained, including that which attracts legal privilege. This sets the context for the additional protections which are set out in subsequent parts of the Bill. It puts beyond doubt the importance of legal privilege. It makes it clear that public authorities must be mindful of the particular sensitivity of material which attracts privilege and must apply the additional protections provided for in the Bill.
The next set of amendments provided for in this group amend Clauses 27 and 107, which set out the protections for items subject to legal privilege in the targeted interception and targeted equipment interference provisions. Amendments 99 and 132 make it clear that it will not be possible to target legally privileged material solely on the grounds that is in the interests of the economic well-being of the UK. Amendments 100 and 133 define the exceptional and compelling test that applies when the intention is to obtain legally privileged material. The Bill is currently silent on this test, and detail as to what it means in practice has been set out in the draft code of practice.
Baroness Hayter of Kentish Town (Lab)
Like other noble Lords, I thank the Minister and the Bill team for the detailed discussions—perhaps negotiations is a better word—that they have had not only with us but with other interested parties. We have sought to balance our strong desire to protect clients’ confidentiality—their ability to speak openly and honestly with their lawyer, safe in the knowledge that information will go no further —with the need to safeguard the security of citizens and free them from the threat of terrorism or other risks to life. It would be wonderful if there were a nice, absolute and clear division between those two objectives but, sadly, in the real world there seldom is.
The Bill as drafted had not got the balance right. It was tipping towards the state’s ability to access or use legally privileged information. Since then, as the Minister outlined, the amendments to Clause 2, an overriding clause which should circumvent all the powers in the Bill, will significantly safeguard privileged material. It is not an absolute, but we acknowledge movement here and in other amendments, such as the public interest test needed before approving a warrant. It would require both the Secretary of State and a judicial commissioner to be satisfied that the public interest in obtaining the information outweighed that long-standing public interest in maintaining the confidentiality of legally privileged communications, but also, importantly, that there were no other reasonable means of obtaining the required information.
Similarly, we welcome Amendment 25, by which, when a warrant is requested to prevent or detect serious crime, the exceptional compelling circumstances have to relate to national security or preventing death or significant injury, and do not, as with some of the other powers, include being in the interests of the UK’s economic well-being. We are also pleased that the commissioner would have to be informed when any privileged material is retained by an agency and note that, as has just been mentioned, it can be ordered to be destroyed or for conditions to be imposed on its disclosure.
We are, however, sympathetic to the desire of the noble and learned Lord, Lord Mackay of Clashfern—I cannot believe he really called himself less luminous—to allow the commissioner to differentiate between advice and, for example, the time when a phone call was made, which could be incredibly important but irrelevant to the content of the phone call. If there is a way to enable the commissioner to differentiate in that way, we hope that the Government will respond to that positively.
Finally, with regard to the so-called inequity exception, we note that any application for a warrant under this provision would have to set out the grounds for believing that communications are being made with the intention of furthering a crime, and we welcome that.
We are mindful that representatives of lawyers—speaking on behalf of their clients, because it is their interests that we are discussing—feel that the Government have not gone far enough to meet their concern. We acknowledge that, on paper, an enormous amount of progress has been made. Our concern is whether the resources, culture and mindset of the IPC will allow for the scrutiny and challenge that the words now on paper will require. I am reassured by the fact that the judicial commissioners are not just lawyers but very experienced and senior ones, so they will have a background of understanding the legal profession’s fears and long-standing views about this matter. Perhaps, when replying, the Minister, in addition to responding to the wider points made, can give an assurance that the commissioner and judicial commissioners will be appointed with a view to guaranteeing their complete independence and with sufficient resources to be able to look at these significant and demanding issues with due care and attention.
Lord Keen of Elie
My Lords, I am obliged to noble Lords. I begin by looking at Amendments 27 and 88, which seek to insert the word “clearly” in the public interest test. On this point I concur with the observations of the noble Lord, Lord Carlile of Berriew, that there is a danger that this would simply muddy the waters and not clarify.
The test as set out in the government amendment is straightforward. The public interest in obtaining the information sought either outweighs the public interest in maintaining the confidentiality of privilege or it does not. If the word “clearly” were inserted, that certainty would be lost. We would have to try to define what we mean by “clearly”. Logic suggests that it means that one public interest test should outweigh the other by a certain amount, as indicated by the noble Baroness, Lady Hamwee, but it is not apparent what that amount would be. This would undoubtedly lead to confusion and uncertainty. Given that such a warrant can be sought only in exceptional and compelling circumstances, where national security or life and limb are at risk, confusion and uncertainty are one thing that we cannot afford.
The government amendments set out in detail what is intended by “exceptional and compelling”. The test is explicit on the face of the Bill and it is one that works. We are also introducing a requirement for the codes to include additional information about when circumstances are to be considered exceptional and compelling, and requiring the Investigatory Powers Commissioner to keep that language under review. It is in these circumstances that I invite the noble Baroness not to press her amendments.
The second set of amendments in this group—Amendments 56, 57, 192 and 193—seek to change the power of the Investigatory Powers Commissioner to determine what happens to legally privileged material when it has been obtained by an agency and the agency wishes to retain it. First, they would provide that the commissioner has the power to impose conditions on the use of the item as well as its disclosure. Secondly, they would also require the commissioner to direct that any privileged material that has been obtained must be destroyed unless there are exceptional and compelling circumstances that justify its retention. These amendments raise important issues in respect of legally privileged material that is inadvertently obtained and where the agency wishes to retain it. I would like to reflect further on our consideration of these points today and to return to this issue at Third Reading.
Amendment 107 deals with communications data and seeks to provide for judicial approval of authorisations for the communications data of a person who is or is likely to be a practising legal professional. It seeks to reflect the protections provided in Part 3 of the Bill for the identity of a journalistic source, but in practice this amendment goes much further by attaching the protections to the profession rather than to the sensitive information they manage. The debates in the House of Commons and at previous stages in this House have been clear that Parliament’s view is that protection should attach to the sensitive communication or to the function being carried out and should not simply apply to the person because they are a member of some profession. For example, there was consensus that protection should apply to the journalist’s communications with a source or the client’s communications with a lawyer. This amendment would go against that consensus by providing protection to a lawyer simply because he is a lawyer.
The Bill takes a reasoned and balanced approach. It applies additional protections where appropriate; provides for judicial authorisation of the most intrusive powers and for the use of less intrusive powers in the most sensitive circumstances; and provides a powerful and robust oversight regime to ensure that powers cannot be misused. The protections provided are specific to each power under the Bill, applying protection which is appropriate to the level of intrusion represented by each power. The draft Communications Data Code of Practice sets out the additional considerations that must be taken into account when any data relate to a member of a profession which routinely holds items subject to legal provision. Indeed, Schedule 7 to the Bill requires that the code shall include such detail. In addition, the current amendment to Clause 2 puts beyond doubt the importance of taking particular care in relation to sensitive information, such as items subject to legal privilege.
Our debate has already shown the importance that the Government place on the protection of legally privileged material, but I would suggest that it is not appropriate to introduce these additional protections within the context of authorisations for communications data. I invite the noble Baroness not to press Amendment 107.
Amendment 55A, tabled by the noble and learned Lord, Lord Mackay of Clashfern, seeks to amend government Amendment 55. This amendment would require the Investigatory Powers Commissioner to direct that any material obtained that is subject to legal privilege must be destroyed and allow the agency to retain only material that is incidental to that which is privileged.
I have already indicated in response to Amendment 57, proposed by the noble Baroness, Lady Hamwee, that I am minded to look again at whether there is more we might provide on the face of the Bill regarding the test that the commissioner should apply when making a decision about whether material can be retained. However, I would respectfully suggest that what the noble and learned Lord proposes with this amendment is not appropriate in the circumstances. It is the case that the vital intelligence that an agency may require could intrude not only on incidental material in a legally privileged communication but on the legally privileged communication in general.
I take up the example which the noble and learned Lord gave of the individual communicating with a lawyer and asking, “Can I be extradited from Greece?”. One might say, in a very straightforward fashion, that the relevant intelligence there is Greece, not that he may or may not be extradited. But what if the communication goes like this: “Can I be extradited from Greece or Albania?”, and the answer is, “You can be extradited from Greece but you cannot be extradited from Albania”. Just giving them Greece and Albania will not assist the intelligence services very much. On the other hand, the legally privileged information that he can be extradited from Greece but cannot be extradited from Albania might lead the reasonable intelligence officer to infer that the individual was more likely to be found in Albania than in Greece. It is in those circumstances that I suggest that one cannot easily divide between the two. As I have indicated, we are conscious that in these areas we can look again to see whether we can strengthen these matters. At this stage I would invite the noble and learned Lord not to press his amendment.
Lord Mackay of Clashfern
My Lords, I am extremely happy that the noble and learned Lord should look at this matter further. To take his example on Greece and Albania, I think the correct way to deal with that would be to say that it was an inference from the legal advice that he might be going to Albania and you could separate that out from the advice itself as a matter of edit, allowing for inferences from the nature of the arrangement. I think that a little bit of, shall I say, creative editing would make this possible. I am very keen to conserve the idea that legal professional privilege is absolute—that is the purpose of my amendment. I believe that with a bit of ingenuity the Government could devise a formula that would allow that to happen. In the meantime, I am happy not to press my amendment on the basis that it will be considered by the Government, and if necessary, I can return to it at Third Reading.
Lord Keen of Elie
“( ) In deciding whether to issue the warrant, the person to whom the application is made must have regard to the public interest in the confidentiality of items subject to legal privilege.”
Lord Keen of Elie
“( ) For the purposes of subsection (3)(a), there cannot be exceptional and compelling circumstances that make it necessary to authorise or require the interception, or the selection for examination, of items subject to legal privilege unless—(a) the public interest in obtaining the information that would be obtained by the warrant outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) in the case of a warrant considered necessary as mentioned in section 20(2)(b) or (3) or (as the case may be) 21(4), obtaining the information is necessary for the purpose of preventing death or significant injury.”
“Confidential journalistic material
(1) This section applies if—(a) an application is made by or on behalf of an intercepting authority for a warrant under this Chapter, and(b) the purpose, or one of the purposes, of the warrant is—(i) in the case of a targeted interception warrant or mutual assistance warrant, to authorise or require the interception of communications which the intercepting authority believes will be communications containing confidential journalistic material, or(ii) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the intercepting authority believes is confidential journalistic material.(2) The application must contain a statement that the purpose, or one of the purposes, of the warrant is—(a) in the case of a targeted interception warrant or mutual assistance warrant, to authorise or require the interception of communications which the intercepting authority believes will be communications containing confidential journalistic material, or(b) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the intercepting authority believes is confidential journalistic material.(3) The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 51 or (as the case may be) section 141 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications containing confidential journalistic material.(4) For the meanings of “journalistic material” and “confidential journalistic material”, see section (General definitions: “journalistic material” etc.).”
Earl Howe
My Lords, in moving Amendment 30, I shall speak also to the other government amendments grouped with it. We come to the safeguards associated with confidential journalistic material and sources of journalistic information, which have been the subject of significant debate during the passage of the Bill. This package of amendments protects the fundamental role that journalism plays in a healthy democracy. While it is right that the Bill provides for the investigation of individuals where they are suspected of serious illegality or wrongdoing, whatever their chosen profession, it is also right that particularly sensitive professions are afforded specific additional protections.
In limited circumstances, it may be necessary to use the powers provided in this Bill for the necessary and proportionate investigation of a journalist—for example, where they are suspected of serious illegality or wrongdoing or where there is an immediate threat to life. In such circumstances, the Bill and the associated codes of practice already contain significant protections for journalists and their sources, recognising the strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously. So it already places into primary legislation for the first time the requirement for all public authorities to obtain judicial approval for an authorisation to acquire communications data to identify or confirm a journalistic source. We responded to concerns raised in the Commons by clearly setting out in the Bill that the judicial commissioner, a current or former High Court judge, must first consider the public interest in protecting a source of journalistic information and then be satisfied that there is another, overriding public interest before approving such an application.
On top of that, we went further and introduced Clause 2, the overarching privacy clause, which makes it explicit that public authorities using any power in the Bill must have regard to a number of matters, including whether what is sought to be achieved by an authorisation may reasonably be achieved by other, less intrusive means and the public interest in the protection of privacy. Public authorities would, of course, also be subject to the requirements of the Human Rights Act and all the relevant rights and freedoms that it provides for. Of course, all applications to acquire material must be authorised by a relevant authority and approved by a judicial commissioner. The accompanying draft codes of practice require the Secretary of State, or law enforcement chief for law enforcement use of equipment interference, to apply particular consideration in cases where the subject of the warrant might reasonably assume a high degree of privacy, or where confidential information is involved.
Finally, statutory oversight of the use of investigatory powers, whether in relation to journalists or not, is provided through the creation of the Investigatory Powers Commissioner. Further to this comprehensive oversight regime, the Bill creates a number of offences that apply to the public authorities using the powers to sit alongside existing relevant offences in other legislation. This includes a specific offence of unlawfully obtaining communications data, which will sit alongside the offence of misconduct in a public office in common law, to ensure that, where a public authority knowingly or recklessly acquires communications data without lawful authority, appropriate penalties are available.
My noble and learned friend Lord Keen has already spoken about the government amendment requiring the Investigatory Powers Commissioner to include in his annual report information relating to the operation of particular safeguards, such as those for legally privileged material. I want to make it clear that this requirement also applies to those safeguards protecting confidential journalistic material and sources of journalistic information. It is also important to remember that the Investigatory Powers Commissioner will be able to call on whatever expertise he or she sees fit, and will be provided with sufficient resources to do so. This may be technical or communications expertise or, indeed, professional expertise, such as that of media advisers or lawyers.
We have been clear that the commissioner will lead an outward-facing organisation, and we consider that engagement with professional bodies, such as media representative groups, on how the use of a particular power affects their members is exactly the sort of thing the commissioner and their team should be doing. While we do not think that it would be appropriate to mandate this through legislation, it will form part of the role for the commissioner. These further new amendments will strengthen the safeguards in the Bill even further to ensure that the vital public interest of freedom of expression is protected, while still allowing those who are charged with keeping us safe to continue their vital work.
Amendments 30 and 75 protect the key principle that individuals who provide information to journalists should have an expectation of privacy. The Government accept that it is important that confidential journalistic material is handled with the sensitivity that it deserves. So where a relevant authority applies for a warrant where the purpose, or one of the purposes, is to authorise or require the obtaining of confidential journalistic material, the amendment would require the application to contain a statement confirming that this is the purpose, or one of the purposes.
The same requirement would apply in relation to a targeted examination warrant that seeks to authorise the selection for examination of such confidential journalistic material acquired in bulk. This means that the Secretary of State or law enforcement chief and judicial commissioner will have to be fully aware that they are authorising the obtaining of confidential journalistic material when they come to consider a warrant. The Government are seeking to protect legitimate journalism, while ensuring that those who wish to do us harm cannot hide behind spurious claims of journalism. For this reason, Amendment 268 makes it clear that material acquired or created to further a criminal purpose is not considered journalistic material in the context of the Bill. That seeks to avoid those such as the media wing of Daesh attracting a safeguard intended for legitimate journalists.
In addition to the requirement to clearly state in the application whether the purpose, or one of the purposes, is to obtain confidential journalistic material, the person to whom the warrant application is addressed must also be satisfied that there are specific arrangements in place for the handling, retention, use and destruction of communications containing such confidential journalistic material.
I turn to the amendments which protect sources of journalistic information. A free press cannot operate without journalists, and journalists cannot operate without sources. That is why the Government have focused protections on journalists’ sources and the important public interest in protecting the confidentiality of sources of journalistic information. Amendments 31 and 76 provide further protection by making clear that when a relevant authority seeks a warrant to identify or confirm a source of journalistic information, the application must contain a statement to that effect. This will mean that the Secretary of State or law enforcement chief and judicial commissioner will be fully aware of the intention to identify or confirm a source when they are considering the necessity and proportionality of the warrant. Again, the person to whom the warrant application is addressed must also be satisfied that there are specific arrangements in place for the handling, retention, use and destruction of communications that identify sources of journalistic information.
There are a number of consequential amendments which relate to modification of a warrant. These amendments make it clear that, when modifying a warrant when the purpose is to obtain confidential journalistic material, the same factors must be considered as would be the case in an application to obtain confidential journalistic material.
Amendments 53, 90, 194 and 217 will ensure that, where confidential journalistic material is obtained by a public authority which intends to retain it, the Investigatory Powers Commissioner must be notified as soon as is reasonably practicable. This applies when the material is obtained through interception or equipment interference through a targeted warrant and when it is selected for examination having been collected in bulk. This is an important safeguard. It ensures that the commissioner is fully aware of the confidential material held by the agencies. It assists in his oversight of the particular handling arrangements that must be in place when this type of material is retained by the agencies.
I turn to the amendments in relation to bulk provisions. Amendments 194 and 217 make it clear that, where confidential journalistic material is obtained by a public authority which intends to retain it, the Investigatory Powers Commissioner must be notified as soon as is reasonably practicable. This applies when the material is obtained through interception or equipment interference through a targeted warrant and when it is selected for examination having been collected in bulk. It ensures that the commissioner is fully aware of the confidential material held by the agencies and it assists in his oversight of the particular handling arrangements that must be in place when this type of material is retained by the agencies. There are also a number of consequential amendments on this which provide for the definition of a journalistic source to apply to the Bill as a whole rather than solely to Part 3, as previously drafted.
I hope that what I have said by way of explanation of these amendments demonstrates to the House that the Government have listened to the concerns raised in Committee by a number of your Lordships and to representations from journalists’ organisations and that we have responded in a constructive and helpful way. I beg to move.
Viscount Colville of Culross (CB)
My Lords, I thank the Minister for bringing forward this group of amendments, which will go a very long way to protecting the important relationship between the best journalists and their sources. As a journalist, I know how increasingly difficult it is to nurture a relationship with a whistleblower or an anonymous source who is prepared to reveal confidential information in the public interest. The Bill had been in danger of damaging that bond of trust, as I said in my speech at Second Reading. However, Amendment 30 will now place this relationship at the forefront of the judicial commissioners’ minds. During the passage of the Bill there have been questions about the definition of journalism, but these new amendments will give commissioners the powers to decide whether it is in the public interest to protect a particular source of journalism information.
I have also been concerned that targeted interception clauses would have made journalists covering demonstrations greater targets for those wanting to cause harm. The Bill would have opened the journalists to the threat of being seen as agents of the forces of law and order. This would have compromised their independence and ability to report the incident, not to mention putting them in harm’s way. However, Amendment 75 assuages my fear. The noble Earl and the Bill team have gone far to strengthen these safeguards for journalistic material in the various powers considered, but the new codes of practice will strengthen them even further. My only reservation is that the Bill does nothing to allow notifying the lawyers of reputable news organisations to alert them that a warrant to carry out surveillance on their journalists has been issued. This would have given them a chance to explain the importance of maintaining the confidentiality of a source when a warrant was asked for. However, I trust that the changes brought forward in this group of amendments will allow the commissioner to protect those sources of journalism. I know that the noble Earl and the Bill team have worked long and hard to come up with these amendments and I thank them.
Baroness Hayter of Kentish Town
My Lords, I hope that my noble friend Lord Rooker has not ended the Minister’s political career. However, I think we all can say that when we come here our political careers are behind us. I join the noble Viscount, Lord Colville, the noble Lord, Lord Black, and others in thanking the Ministers and their team for the significant changes that have been made. I will not go through all of them, but the Government’s adding in Amendment 11 a reference to,
“information identifying or confirming a source of journalistic information”,
needing extra protection is very welcome, in addition to the other overriding requirement of there being no other way of getting the information.
As has been mentioned, government Amendments 30 and 31 insert special procedures for journalistic material and, perhaps of even more concern to journalists, journalists’ sources. As has just been said, the NUJ in particular wants other changes to be introduced but the idea of prior notice for covert investigation is in itself a contradiction too far. We are, however, sympathetic to the essence of the journalists’ approach—that is, their desire to protect not simply their members but whistleblowing members of the public through whom misdeeds often come to light. However, there will be occasions when terrorists or others who wish us harm will have been in touch with a journalist and the sole indication of that person’s whereabouts might exist on a journalist’s phone. Unless we are absolutely sure that we would never in any circumstances want those who protect us to be able to access that information, we need the warrants and the powers in the Bill. We hope very much that the safeguards provided will keep those exceptions to a minimum—I think that the word used was “rare”—and we hope that the IPC, in reviewing what happens, will always bear in mind the cost to all of us if fears of retribution deter good whistleblowers from getting misdeeds into the public domain. However, those are in a way fairly small instances. I commend to the House the changes that have been made.
Earl Howe
My Lords, I very much appreciate the noble Lord, Lord West, alerting the House to the achievement of my distinguished ancestor, Admiral Earl Howe, in relieving the siege of Gibraltar, to which he referred for the rest of his life as one of his greatest accomplishments. Glad as I am that this package of amendments has received the approval of so many of your Lordships, I cannot claim that it falls into quite the same bracket as the relief of Gibraltar. I am obviously gratified that it has met with the House’s approval.
For the sake of completeness, I should add that we have also undertaken an extensive update of the section relating to journalists and their sources in the existing draft communications data code of practice, providing additional statutory guidance to police forces about handling requests for communications data relating to journalists. This revised version of the code has been published in time for Report, so I refer noble Lords to it.
“Sources of journalistic information
(1) This section applies if—(a) an application is made by or on behalf of an intercepting authority for a warrant under this Chapter, and(b) the purpose, or one of the purposes, of the warrant is to identify or confirm a source of journalistic information.(For the meaning of “source of journalistic information”, see section 239(1).)(2) The application must contain a statement that the purpose, or one of the purposes, of the warrant is to identify or confirm a source of journalistic information.(3) The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 51 or (as the case may be) section 141 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications that identify sources of journalistic information.”
(i) ”
Earl Howe
My Lords, I am grateful to both the noble Lord, Lord Rosser, and the noble Lord, Lord Paddick, for the way they introduced this amendment. Of course, its context, as the House will be aware, is the position of this country vis-à-vis the United States. I welcome the opportunity to respond to the amendment because it provides me with a chance to update the House on the progress of the proposed bilateral agreement between the United Kingdom and the United States on the issue of access to data across jurisdictions.
The UK and United States Governments have been considering a framework under which communications service providers based in one country could disclose data directly to the other for serious criminal and counterterrorism investigations when required to by a valid warrant or order, without facing a conflict of law. We need to address the situation—highlighted by Sir Nigel Sheinwald, David Anderson, and indeed some US-based companies themselves—where the content of communications between UK nationals, in the UK or in third countries, who are planning or committing crime in the UK, or others who pose a direct threat to the UK both here and abroad, can be beyond the reach of UK law enforcement simply because the data that relate to their communications happens to be stored in the United States.
I am pleased to say that in July 2016 the US Government sent a legislative proposal to Congress that, if passed, would pave the way for a bilateral agreement between the UK and US Governments. The legislation and agreement would help ensure that US-based communications service providers were able to respond to lawful orders from the UK by removing any perceived conflict of law that may previously have prevented co-operation. It would include strong safeguards and so maintain rigorous privacy protections while providing a means for UK agencies to make targeted requests for data relating to serious criminality. This type of agreement would be good for business, which requires greater certainty in the face of any conflict of laws; good for the public, because it would increase levels of transparency and oversight, while also ensuring that they are protected from key threats; and good for the internet, because it would avoid the challenges posed by data localisation and the balkanisation of the web.
We hope that such an agreement can be in place as soon as possible. However, any timetable will of course depend on the changes required to the relevant US legislation. We hope that these can be agreed quickly. Clearly, it would not be right to specify something that does not yet exist as a primary route in the Bill. However, I can reassure the House that, in practice, of course the intention is that such an agreement between the United Kingdom and the United States would be the primary route through which UK agencies access data from US-based communications service providers where it is within the scope of the agreement.
We have always sought to work with companies so that they are able to meet their obligations under UK law. This agreement will help to facilitate exactly that co-operation—so the amendment is not necessary. It is worth repeating what the Prime Minister said in March when she was Home Secretary: any company co-operating with its obligations through an international agreement will of course not be subject to enforcement action through the courts. I hope that these remarks are helpful, and for the reasons given I invite the noble Lord to withdraw the amendment.
Lord Rosser
I thank the Minister for his reply and for the update on the discussions that are taking place towards an agreement that I hope will resolve some of the current difficulties. I am quite sure that the Minister’s words and the information he has given will be read with interest, not only within this House but outside it. I thank him for his reply and beg leave to withdraw the amendment.
“( ) Where—(a) a communication which has been intercepted in accordance with a targeted interception warrant or mutual assistance warrant is retained, following its examination, for purposes other than the destruction of the communication, and(b) it is a communication that contains confidential journalistic material or identifies a source of journalistic information,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.”
“Additional safeguards for items subject to legal privilege
(1) This section applies where an item subject to legal privilege which has been intercepted in accordance with a targeted interception warrant or mutual assistance warrant is retained, following its examination, for purposes other than the destruction of the item.(2) The person to whom the warrant is addressed must inform the Investigatory Powers Commissioner of the retention of the item as soon as is reasonably practicable.(3) The Investigatory Powers Commissioner may—(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(4) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (3), and (b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(5) Each of the following is an “affected party” for the purposes of subsection (4)—(a) the person who decided to issue the warrant;(b) the person to whom the warrant is or was addressed.”
Baroness Hayter of Kentish Town
My Lords, I was about to congratulate the noble Lord, Lord Butler, on his excellent drafting of the amendments but he has slightly given away that it was not all done by his own fair hand. However, if the look on the Minister’s face is indicating that the Government might accept the amendments, we are delighted that the noble Lord’s influence from this House seems to be keeping pace with the influence that he had in his previous occupation. We are very content to support the amendments.
Lord Keen of Elie
My Lords, we welcome the chance to revisit this important issue, which was debated in Committee.
In putting beyond doubt that deliberate wrongdoing in relation to the bulk powers will be subject to clear, criminal sanction, we accept that these amendments will provide clarity on a crucial issue. We also believe that they have been drafted in such a way that, rightly, they would not criminalise honest, well-intentioned mistakes by the staff of our security and intelligence agencies, who do so much to keep us all safe. As such, we believe they strike the right balance and are to be welcomed. Therefore, we are happy to accept the amendments.
Lord Keen of Elie
(a) a member of the panel of the inquiry,(b) a person appointed as legal adviser to the inquiry,(c) a person who is a relevant party to the proceedings,(d) a person representing such a person for the purposes of the proceedings, or(e) a person performing functions necessary for the proper functioning of the proceedings.”
Lord Keen of Elie
My Lords, I shall now introduce a number of government amendments concerning the disclosure of information in relation to warrants.
Amendments 60 and 61 clarify those persons who may be present during restricted proceedings of an inquiry, as provided for under the Inquiries Act 2005, when intercept material is disclosed or examined. The proposed changes make it clear that intercept material can be disclosed in restricted proceedings only if restrictions are in place to prohibit attendance by anyone other than those individuals listed in Amendment 61.
I move on to Amendment 62. Clause 54 imposes a duty not to make unauthorised disclosures in relation to warrants issued under Part 2 of the Bill or Chapter 1 of Part 1 of the Regulation of Investigatory Powers Act 2000. Clause 55 sets out the circumstances in which such a disclosure is permitted. This amendment corrects a minor error in relation to Clause 55, which would allow a person to whom a mutual assistance warrant is or was addressed to authorise a disclosure of material in relation to the warrant if it was in accordance with a statutory purpose. The person referred to here would be a competent authority outside the United Kingdom, such as a foreign law enforcement agency. We do not wish to allow for such a disclosure and the amendment simply removes the ability of a person to whom a mutual assistance warrant is or was addressed to authorise a disclosure in relation to that warrant.
Amendments 63 and 93 do not change the meaning of Clauses 55 and 125 but simply clarify the excepted disclosure provisions in the Bill. This minor change makes it clear that a disclosure of information made by a legal adviser in relation to a warrant is not an “excepted disclosure” where the intention is to further a criminal purpose.
Amendments 64 and 94 relate to Clauses 55 and 125, which provide for certain disclosures to be made in relation to warrants. These amendments propose changes to the regulation-making power by which the Secretary of State may provide for permitted disclosures of statistics in relation to warrants.
These changes will permit communications service providers to publish greater statistical detail about the warrants to which they have given effect. The regulations may, for example, permit companies to publish not only data regarding the number of warrants to which they have given effect but details relating to the number of customer accounts that are subject to warrants issued under the Bill. This demonstrates the Government’s commitment to ensuring that, in addition to improving the safeguards around the use of investigatory powers, we are also increasing transparency by providing for more information to be made available to the public on the number of times these powers have been used. Accordingly, I invite noble Lords to support these government amendments, technical as they are.
“( ) In this paragraph “relevant party”, in relation to any proceedings of an inquiry, means—(a) any person making a disclosure to the panel of the inquiry, or to a person appointed as legal adviser to the inquiry, in accordance with paragraph 22(1);(b) any person giving evidence to the inquiry in circumstances where, in the absence of sub-paragraph (1), the prohibition imposed by section 53(1) would be breached;(c) any person whose conduct is the interception-related conduct (within the meaning of section 53) to which the disclosure or evidence relates (whether or not that conduct has in fact occurred);(d) any other person to whom the subject-matter of the disclosure or evidence has been lawfully disclosed in accordance with section 55.( ) Any reference in this paragraph to a person appointed as legal adviser to an inquiry is to be read in accordance with paragraph 22(3).”
“( ) But subsection (2)(b) does not apply in the case of a mutual assistance warrant that is or was addressed to a person falling within section 18(1)(h) (competent authorities of overseas countries or territories).”
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”
“and section 103(5) does not apply in relation to the refusal to approve the decision.”
“Confidential journalistic material
(1) This section applies if an application is made for a warrant under this Part and the purpose, or one of the purposes, of the warrant—(a) in the case of a targeted equipment interference warrant, to authorise or require interference with equipment for the purpose of obtaining communications or other items of information which the applicant for the warrant believes will be communications or other items of information containing confidential journalistic material, or(b) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the applicant for the warrant believes is confidential journalistic material.(2) The application must contain a statement that the purpose, or one of the purposes, of the warrant is—(a) in the case of a targeted equipment interference warrant, to authorise or require interference with equipment for the purpose of obtaining communications or other items of information which the applicant for the warrant believes will be communications or other items of information containing confidential journalistic material, or(b) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the applicant for the warrant believes is confidential journalistic material.(3) The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 122 or (as the case may be) section 177 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications or other items of information containing confidential journalistic material.(4) For the meanings of “journalistic material” and “confidential journalistic material”, see section (General definitions: “journalistic material” etc.).”
“( ) Where—(a) material obtained under a targeted equipment interference warrant is retained, following its examination, for purposes other than the destruction of the material, and (b) it is material that contains confidential journalistic material or identifies a source of journalistic material,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.”
“Additional safeguards for items subject to legal privilege
(1) This section applies where an item subject to legal privilege is retained for purposes other than the destruction of the item following its examination under a warrant issued under this Part.(2) The person to whom the warrant is addressed must inform the Investigatory Powers Commissioner of the retention of the item as soon as is reasonably practicable.(3) The Investigatory Powers Commissioner may—(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(4) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (3), and(b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(5) Each of the following is an “affected party” for the purposes of subsection (4)—(a) the issuing authority (within the meaning given by section 122(11));(b) the person to whom the warrant is or was addressed.”
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”
Baroness Chisholm of Owlpen (Con)
Because everything has gone so quickly, I beg to move that the House do adjourn during pleasure until 7.30 pm.