Monday 17th October 2016
(8 years, 1 month ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
Lord Paddick
“( ) There shall be a body corporate known as the Investigatory Powers Commission comprising—(a) the Investigatory Powers Commissioner;(b) Judicial Commissioners; and(c) staff to support the Commissioners.”
Lord Paddick (LD)
My Lords, this amendment stands in my name and that of my noble friend Lady Hamwee. It introduces to the Bill a body corporate known as the investigatory powers commission that comprises the Investigatory Powers Commissioner, judicial commissioners and staff to support the commissioners. I am relying heavily on, and am very grateful to, the Interception of Communications Commissioner’s Office in this matter.
At present the Bill creates only a chief judicial commissioner and a small number of judicial commissioners. The commissioners will be responsible for approving approximately only 2% of the applications falling within the remit of the oversight body. Most of the applications made under the Bill are likely to be for communications data, for example, individual applications for which are not subject to prior approval by a judicial commissioner. The remaining 98% will be subject only to post-facto oversight.
The post-facto oversight will be carried out predominantly by specialist inspectors, investigators, analysts and technical staff working to the Investigatory Powers Commissioner, and it is important for those individuals to have a delegated power to require information or access to technical systems. According to the Interception of Communications Commissioner’s Office:
“The creation of a Commission is crucial to achieve a modern, inquisitive oversight body that has the expertise to carry out investigations and inquiries to the breadth and depth required and the intellectual curiosity to probe and challenge the conduct of the public authorities”.
I shall expand on what IOCCO means by that.
First, it means that the specialists do not have to wait to be tasked by the commissioner but can use their initiative and expertise to follow the evidence and conduct post-facto scrutiny where they believe it is most needed. Secondly, other commissions, such as the Independent Police Complaints Commission, are bodies corporate whose investigators have all the powers of their commission. This prevents police officers saying, “I’m not talking to you, Mr Investigator. I am only going to talk to a commissioner”. The Government may say that there is no direct parallel here but they would be wrong.
The Intelligence Services Commissioner was asked by the then Home Secretary, Theresa May, to carry out an investigation into what the security services knew about those involved in the murder of Fusilier Lee Rigby. In his supplemental report to his 2015 annual report, Sir Mark Waller, at paragraph 5.3(4), talks about his attempts to have counsel, Mr Sanders, who was carrying out the investigation on the commissioner’s behalf, present during the interviews of some of those involved:
“Prior to these interviews taking place, SIS told me that Desk Officer 1 and Intelligence Officers 1 and 3 objected to Mr Sanders being present and so he did not attend. I have since been told by SIS that this objection in fact came from its senior management. I very much regret that this was not made clear to me at the time as I would have challenged it” "
The fact is that, unless those carrying out post-facto scrutiny are part of a body corporate, as in the case of the IPCC, those whom they are supposed to be scrutinising can refuse to co-operate with them and demand that they deal with the Investigatory Powers Commissioner alone.
The IOCCO says:
“Putting the oversight Commission on a statutory footing will be a huge step towards guaranteeing independence, capability and diversity within the organisation which will inspire public trust and confidence”.
It goes on to say:
“Creating an oversight Commission would also help make a distinction between the approval and post-facto audit elements of the oversight body, addressing a concern raised by a number of witnesses to the Joint Committee that the Judicial Commissioners should not be perceived to be ‘marking their own homework’”.
This of course refers to the fact that in the 2% of cases where a warrant was approved by a judicial commissioner, without the establishment of a commission it could understandably be perceived by the public that the judicial commissioners were post-facto auditing the decisions of other judicial commissioners. Although this may be an accepted practice in the legal profession—in the courts and so forth—it is likely to be lost on the general public. The Interception of Communications Commissioner’s Office concludes:
“We urge the Government to implement this recommendation which was also made by the RUSI Independent Surveillance Review, David Anderson QC and the IP Bill Joint Committee”.
The amendment seeks to implement that recommendation. I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, we are satisfied that the speedy and effective establishment of the office of Investigatory Powers Commissioner will provide the staff, expertise and structure to implement the Bill. As the noble Earl will know, we have queried whether the resources will be made available and we will continue to keep an eye on that. However, we see no rationale as to why a body corporate, with all the governance, other requirements and bureaucracy, would be better at achieving the balance that we seek, which is the timely, appropriate and thorough oversight of the powers in this Bill, taking full account of civil liberties and the need to prevent or apprehend crime, and dealing with threats from those who wish us harm.
It is possible that I have misunderstood what the noble Lord, Lord Paddick, said, but it seemed that he wanted the staff to have some of the commissioner’s authority. For ourselves, we have relied very much on the judicial commissioners, with the powers given to them under the Bill, and the IPC himself or herself to do this, and we would certainly not want to detract from their authority in any way.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, Amendment 131A seeks to provide in the Bill for an investigatory powers commission in addition to a commissioner. I listened with care to the noble Lord, Lord Paddick, and I understand how strongly he feels about this issue. The Government have been clear throughout the passage of the Bill that the Investigatory Powers Commissioner will lead a powerful new body—the noble Lord and I are, I think, in agreement on that principle. However, the Government have been equally clear that there is no need to create that body in statute. Our principal reason for adhering to that view is that doing so would not confer any new powers, duties or responsibilities on those working for the commissioner, nor would it affect their ability to audit, inspect and oversee public authorities.
I am the first to recognise the importance of public perception. However, as to whether it would benefit public perception to create a commission, I cannot see what advantages an anonymous quango holds over a senior, independent judge. The oversight and authorisation of investigatory powers are vital tasks that need to be performed and need to be performed well. Therefore, in my submission, it is right that an identifiable individual is ultimately responsible for them.
It is the difference between having a person with a public face and a body that risks being seen by the public as faceless. Since the oversight powers and duties are ultimately placed on the Investigatory Powers Commissioner, we logically expect that commissioner to be the public face of the body. It is the commissioner who will be called on to lead the public debate on these issues and to give his or her expert and considered legal view on the matters in the Bill. If, for example, someone receives a notification of an error under Clause 209, or if a report is made under Clause 212, it is better that such communications should come from a senior, named judicial figure rather than a faceless organisation.
Of course, it is necessarily the case that the commissioner will rely on the work of an extensive staff of expert inspectors and advisers. Again, though, I argue that that does not necessitate the creation of a commission in statute. When an inspector walks into a public authority, the fact that they are an employee of an investigatory powers commission would not give them any greater powers than if they are a representative of the Investigatory Powers Commissioner. I agree with one element of what the noble Lord, Lord Paddick, said: it is right that, in such circumstances, those employees should wield appropriate authority. The Government have listened to concerns expressed on this point and tabled amendments, which we will come to later, to make clear that the commissioners can delegate powers under the Bill to their staff. That will make absolutely clear that when the experts and inspectors employed by the commissioner go about their work, they do so with the full force of the commissioner behind them.
Moreover, creating a new body in statute would require the establishment of a board to run that body, complete with at least three non-executive directors. I was grateful to the noble Baroness, Lady Hayter, for her remarks on this point. In the eyes of many, this would muddy the waters of accountability and introduce considerable new bureaucracy into the work of the commissioner. It is much better that the commissioner’s resources and attention should be focused on overseeing the work of public authorities and providing public assurance, rather than on servicing a burgeoning bureaucracy.
Lord Paddick
Can the Minister reassure me that the circumstances that the Intelligence Services Commissioner found himself in—that is, with one of his investigators effectively being excluded when he was involved in investigating what the intelligence services knew prior to the murder of Fusilier Lee Rigby —could not happen in the absence of a body corporate being set up, as this amendment suggests? There are concerns that people in the security services might not acknowledge the authority of the inspectors if it is not the case.
Earl Howe
I fully believe that the amendments we have tabled will give inspectors the authority that is equivalent to that of a judicial commissioner. Although I was not aware of the case that the noble Lord cites, I think the government amendments will put the situation beyond doubt, if ever there was any. I do not believe that the problem the noble Lord refers to has ever impacted more widely on the ability of inspectors to do the job that is required of them; I like to hope that that was a one-off problem. However, with the benefit of the government amendments, it simply should not be an issue.
I hope I have reassured the noble Lord. Certainly, we cannot overlook the point that the creation of a new body would come at significant financial cost that would be of no gain in terms of public reassurance or effective oversight. As I have argued, it might risk making the oversight regime less clear. For a bunch of reasons, I hope the noble Lord will feel comfortable in reconsidering his amendment.
Lord Paddick
I am very grateful to the Minister. I am not sure that he is entirely reassured that the government amendments will deal with this issue, but I accept that that is because he did not have sight of my example prior to the debate. I regret not giving him notice that I would be bringing it up. However, given all the circumstances, I beg leave to withdraw the amendment.
Earl Howe
My Lords, I will speak to Amendment 132 and the others in the group. The government amendments in this group address the fact that the Northern Ireland Assembly has not provided legislative consent for this Bill. Only a small number of provisions in the Bill engage devolved responsibilities in Northern Ireland. These relate to oversight and to the proposal that the role of the Investigatory Powers Commissioner for Northern Ireland, who is responsible for overseeing the exercise of devolved powers, should be subsumed into the Investigatory Powers Commissioner that we are creating under the Bill.
In the absence of legislative consent, the existing office of the Investigatory Powers Commissioner for Northern Ireland will not be abolished. Consequently, the Bill need no longer provide for the First Minister and Deputy First Minister to be consulted on the appointment of the IPC. Similarly, the Prime Minister will no longer be under a statutory duty to send them a copy of the Investigatory Powers Commissioner’s annual report.
Additionally, appeals arising from the Investigatory Powers Tribunal under Clause 220 will no longer be heard by the Court of Appeal in Northern Ireland. It will be for the Investigatory Powers Tribunal to decide whether the Court of Appeal in England and Wales or the Court of Session in Scotland should hear the appeal instead. Although this is obviously not the most desirable appeal route for individuals from Northern Ireland, our hands are tied by lack of legislative consent from the Northern Ireland Executive.
Included in this group of government amendments are regulation-making powers allowing the Secretary of State, with the consent of the Northern Ireland Assembly, to reverse these amendments. Therefore, if legislative consent were given at some point in the future, the IPC could reasonably quickly take on the functions of the Investigatory Powers Commissioner for Northern Ireland and appeals could be allowed to go to the Court of Appeal in Northern Ireland. It is our hope that both these powers can be used in the near future. Accordingly, I hope noble Lords will support these amendments. I beg to move.
Lord Rosser (Lab)
My Lords, I want to make reference to the amendment that we have in this group. Clause 205 provides for the appointment of the Investigatory Powers Commissioner and judicial commissioners.
As currently drafted, Clause 205(5) requires the Prime Minister to consult Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland about the appointment of these commissioners. However, there appears to be currently no duty to consult Welsh Ministers about these appointments, with the result that Wales does not feel that it is being treated equally with the other devolved Administrations in this respect.
Under the Wales Bill before the House, Welsh devolution will take a constitutional form that is much closer to that for Scotland and Northern Ireland. The First Minister of Wales considers that the mutual respect between Administrations means that drawing unnecessary distinctions in legislation between devolved Administrations should be avoided unless strictly necessary. He regards the provision in this Bill—the Investigatory Powers Bill—as at the very least constitutionally discourteous to Wales. In speaking to this amendment, I invite the Government to take the necessary steps in relation to consultation under Clause 205 to address the concern raised by the First Minister on which I have just sought to reflect.
Lord Murphy of Torfaen (Lab)
My Lords, I add my voice to what my noble friend just said. Initially, in the list of government amendments the Minister seemed to be saying that it was no longer a requirement for the First Minister and Deputy First Minister in Northern Ireland to be consulted on the appointments of the IPC and the judicial commissioners. That is a retrograde step and I hope that the Government will rethink it. I will explain why in relation to my noble friend’s amendment with regard to the First Minister of Wales.
When the Joint Committee considered this part of the Bill, it added its own recommendations that when the Prime Minister looked at the appointment of the IPC and the judicial commissioners, he or she should consult the First Minister of Scotland and the First and Deputy First Ministers in Northern Ireland. Both jurisdictions of course are different from England, particularly in Scotland, and it seemed the right thing to do. There was unanimity among members of the Joint Committee on making that recommendation.
Since the Joint Committee met, as my noble friend said, a new Bill has been introduced to this House, the Wales Bill, that will considerably alter the constitutional relationship between Wales and the United Kingdom. For example, it will confer reserve powers on the Welsh Assembly, much of criminal law will be devolved, Wales will be a distinct jurisdiction and there is the possibility in years to come that even justice might be devolved to the Welsh Assembly. It is not at the moment, but certainly the Assembly is arguing that there may be a case in the future for that to happen.
This afternoon, I met with the First Minister for Wales on this very issue. As my noble friend said, the Welsh Government and the Welsh Assembly are very concerned that Wales should be part of the consultation process. No one is arguing that the First Minister of Wales, the First and Deputy First Ministers in Northern Ireland or the First Minister of Scotland should make the appointments: it is a question of courteous consultation. I speak as a former Welsh and Northern Ireland Secretary in saying that devolution has matured over the last dozen years. It is important to respect that maturity and respect the constitutional relationships. On a simple matter of consultation, the Government should rethink the position of the First and Deputy First Ministers of Northern Ireland in this respect and should add the Welsh First Minister as a consultee in this important process. I support the amendment spoken to by my noble friend.
Earl Howe
My Lords, the Investigatory Powers Commissioner will be taking on the responsibilities of the three existing statutory commissioners in this area. I contend that Amendment 132A is unnecessary and indeed inappropriate because it would create an inconsistency across the Bill.
The appointment of commissioners to one of those existing bodies—the Office of Surveillance Commissioners —is currently a matter for the Prime Minister, following consultation with Scottish Ministers. Scottish Ministers also have the power to appoint surveillance commissioners for the purpose of overseeing the exercise of powers under the Regulation of Investigatory Powers (Scotland) Act 2000, or RIPSA.
Under the Bill, the IPC will take on responsibility for overseeing the exercise of powers under RIPSA. As a consequence, the Bill will remove the power of Scottish Ministers to appoint surveillance commissioners. To be consistent with the current position, the Bill therefore requires that Scottish Ministers must be consulted by the Prime Minister prior to the appointment of the IPC or a judicial commissioner. Similarly, the Bill currently requires the Prime Minister to consult the First Minister and Deputy First Minister of Northern Ireland on the appointment of a commissioner. This again reflects the fact that Northern Irish Ministers currently have a role in the appointment of the Investigatory Powers Commissioner for Northern Ireland, which the Bill had originally proposed to subsume into the office of the IPC.
In the event, as I have just said, the Bill has not received legislative consent from the Northern Ireland Assembly. Consequently, the amendments that I have already spoken to in this group would remove the requirement for consultation with Northern Irish Ministers. The noble Lord, Lord Murphy, said that that was a retrograde step, but without legislative consent for the Bill from the Northern Ireland Assembly, the Government have no alternative. In contrast, Welsh Ministers currently have no statutory role in the appointment of the existing commissioners. As the Bill will not affect the competence of Welsh Ministers, I do not consider it necessary to introduce a new right of consultation. Indeed, doing so would create an inconsistency between the treatment of Welsh Ministers and their counterparts in Northern Ireland.
The appointment of judicial commissioners is an important matter, which is why the Government have strengthened the Bill by requiring that appointments must be on the recommendation of the Lord Chief Justice of England and Wales, and that of his devolved counterparts. So Welsh interests will undoubtedly be represented by the Lord Chief Justice of England and Wales. Indeed, I note that the current Lord Chief Justice was in fact born in Wales. I do not consider that further changes to this process are necessary, particularly when they would serve to create inconsistencies within the Bill, as I have explained. On that basis, I hope that the noble Lord will agree not to press his amendment.
Lord Rosser
I thank the Minister for his response. The spirit of the amendment, frankly, is that in the light of the thrust of the Wales Bill the Government ought to be prepared to consider making the change sought in the amendment, which after all is about consultation. However, I note the response that has been received, which clearly indicates that the Government are not prepared to go down that road. I am sure that the First Minister will read the Government’s response carefully even though it will probably be without any enthusiasm.
Lord Keen of Elie
“(8A) Subsection (8) does not apply to the function of the Investigatory Powers Commissioner of making a recommendation under subsection (4)(e) or making an appointment under section (Members of the Panel)(1).(8B) The delegation under subsection (8) to any extent of functions by the Investigatory Powers Commissioner does not prevent the exercise of the functions to that extent by that Commissioner.(8C) Any function exercisable by a Judicial Commissioner or any description of Judicial Commissioners is exercisable by any of the Judicial Commissioners or (as the case may be) any of the Judicial Commissioners of that description.(8D) Subsection (8C) does not apply to—(a) any function conferred on the Investigatory Powers Commissioner by name (except so far as its exercise by any of the Judicial Commissioners or any description of Judicial Commissioners is permitted by a delegation under subsection (8)), or(b) any function conferred on, or delegated under subsection (8) to, any other particular named Judicial Commissioner.”
Lord Keen of Elie
My Lords, this group contains a variety of government amendments relating to oversight arrangements.
Amendments 133 and 149 clarify the delegation of functions by the Investigatory Powers Commissioner or judicial commissioners. They make clear that certain judicial functions of the IPC or judicial commissioners cannot of course be delegated to staff. The amendments also make clear that, where the Bill requires a judicial commissioner to undertake a task, any of the judicial commissioners can perform that duty. However, the IPC can still delegate a function or functions to an individual judicial commissioner in order to create a de facto deputy, should he wish to do so. Delegation of certain functions is sensible and allows for a flexible and efficient working environment. Of course, it would be inappropriate if the IPC could delegate to a judicial commissioner the ability to recommend individuals to be appointed as judicial commissioners and so this function is reserved to the IPC.
Amendment 149 puts beyond any doubt that the inspectors and expert advisers who work for the Investigatory Powers Commissioner or a judicial commissioner will be working with their full delegated authority. This responds to concerns raised by the noble Baroness, Lady Hamwee, in Committee. We have been clear that the Investigatory Powers Commissioner will lead a powerful new oversight body which will rely on the work of inspectors and technical experts alongside the commissioners themselves. Those working under the authority of the commissioner will have the same right to access and interrogate information that the commissioners themselves would have. This amendment puts that beyond doubt. It makes it clear that commissioners can, formally and in accordance with statute, delegate some of their functions to the staff working for them.
However, it is right that not all functions should be capable of delegation. There are some activities and decisions, such as decisions to approve the use of powers, that should rightly be undertaken by judges. Therefore, this amendment also prevents those types of activities and decisions from being delegated to members of staff. These amendments strike the right balance between allowing members of staff to claim the full authority of the commissioner while reserving key judicial functions to those who are appropriately qualified to undertake them. I hope that that brings some satisfaction to the noble Lord, Lord Paddick, who was concerned to anticipate whether these amendments would go as far as he hoped; I believe that they do.
Amendment 135 is intended to provide further clarity about when a commissioner does not need to consider the duties set out in Clause 207(6) and (7). I hope that the House will agree that while the Investigatory Powers Commissioner and the judicial commissioners who will be working for him or her will be performing vital functions, it is important that the actual performance of those functions does not damage the public interest. Subsections (6) and (7) set out a number of duties on the commissioner: for example, that they should not act in a way that in their own opinion is prejudicial to national security, nor should they act in a way that they consider would compromise the safety of those involved in a security operation.
When the Joint Committee on the Draft Investigatory Powers Bill considered the first incarnation of this clause, it expressed concern that the duty placed on the commissioners as set out in these subsections was too broad. The Government then carefully considered this clause and agreed that there should be occasions on which a commissioner was not caught by these additional duties. For example, we put it beyond doubt that a commissioner could refuse to approve the decision to issue a warrant without worrying that they were breaching their duties in relation to national security. This amendment goes further still along that same path. It increases the list of circumstances in which a judicial commissioner will not be subject to the duty contained in subsections (6) and (7). The amendment expands the list to include all circumstances in which a judicial commissioner could be said to be exercising a “judicial function” or taking a judicial decision. I hope that this provides the House with further reassurance that we do not intend subsections (6) and (7) to be unduly limiting upon the important work of the commissioners.
Clause 223 provides for membership of the Technical Advisory Board, a non-departmental public body that advises the Secretary of State on cost and technical grounds if a notice given under Parts 4 or 9 of the Bill is referred by a telecommunications operator for review. Membership of the board must include a balanced representation of those on whom obligations may be imposed by virtue of notices and of those persons entitled to apply for warrants or authorisations under the Bill. At present, subsection (2)(a) of this clause requires that the membership of the board must include persons on whom obligations could be imposed by virtue of a data retention notice or technical capability notice—namely, telecommunications operators. Government Amendment 177 makes a minor change to this provision to add persons on whom obligations could be imposed by a national security notice. The amendment will not change the scope of the persons who must be represented on the board; indeed, a national security notice may only be given to a telecommunications operator. However, this minor change will make the meaning of the provision more clear.
Amendment 136 is a minor amendment to Clause 207, clarifying the policy intention that the Investigatory Powers Commissioner should be able to review the decisions of other judicial commissioners should this be necessary.
Amendments 137, 263 and 274 move the definition of a “statutory function” to Clause 239 alongside other definitions.
I turn now to Amendment 146. In Committee, the noble Baroness, Lady Hamwee, sought further clarity as to precisely who is covered by the definition of a “member” of a public authority. Having reflected on the matter, I can see that perhaps this definition is not as clear as it could be. Therefore, the Government have introduced this amendment to be clear that everyone who works for a public authority or who has worked for a public authority in the past will have to provide the IPC with all necessary assistance. I hope that that gives the House reassurance that the IPC will be able to hold those public authorities properly and clearly to account.
Amendment 147 is intended to put beyond doubt the fact that the Investigatory Powers Commissioner will have access to advisers, be they legal, technical or of any other nature, that the commissioner feels is necessary to undertake their statutory functions. This amendment provides that the Secretary of State, after discussion with the IPC, must provide the commissioner with services as well as with staff, accommodation, equipment and facilities. I would like to be clear, though, that the commissioner will be entirely free to choose their own advisers and that the Secretary of State will merely supply the resources to pay for those advisers. This will allow the commissioner flexibility to “buy in” whatever advice they need at whatever time.
Amendments 154 to 156 are technical amendments providing additional certainty around the definition of the chief and other surveillance commissioners who are being abolished by the Bill and replaced by the Investigatory Powers Commissioner.
Clause 221 already makes a number of amendments to Sections 65, 67 and 68 of RIPA in relation to the functions of the Investigatory Powers Tribunal. Amendments 163 to 175 are further technical amendments simply updating the relevant provisions of RIPA to ensure that it is clear that the Investigatory Powers Tribunal has the jurisdiction to investigate any claims or complaints relating to the provisions of the Investigatory Powers Bill. I beg to move.
Baroness Hamwee
My Lords, we welcome the amendments in this group. The provisions on delegation are indeed extremely helpful, as we were concerned about the chain of command and chain of responsibilities. I am glad to see the little amendment about being a “member” of a local authority—or HMRC, which I think was the other example I used. I had thought I was maybe going a bit too far in raising that point, but I am glad that I did. I am also glad to see the insertion of the reference to services for the IPC, which we were also concerned about. Having said that, we are happy with these amendments.
Baroness Hamwee
“( ) The Investigatory Powers Commissioner may publish material expressing views as to or recording legal interpretations of the provisions of this Act.”
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I also have Amendments 178A, 178B and 178C in this group.
We mentioned in Committee how inextricably intertwined are technical and legal matters in this area. I doubt that either Minister would disagree with that, having lived with this Bill as they have. Whether and how the Act will apply will be a matter of legal interpretation in the context of the technology that we have at the time. Our Amendment 134A would give the Investigatory Powers Commissioner power to publish material regarding legal interpretations. It is clear that he would keep the interpretations under review, so this amendment is simply a matter of having the power to publish them.
We welcome government Amendment 178 and its consequential amendments providing for a Technology Advisory Panel. We have three minor amendments seeking either clarification or adjustment. Subsection (1)(a) of the new clause provides for the panel to give advice on,
“the impact of changing technology on the exercise of investigatory powers”.
We would insert there a reference to the safeguards on the exercise of powers. That may be implicit, because the exercise of powers is to be subject to safeguards, but we think it should be explicit. After all, safeguards have been very much a feature of debate on the Bill in both Houses, and the Bill has changed quite a lot in spelling out what safeguards there are.
Similarly, Amendment 178B would insert advice on the interpretation of the law in the light of technological advances and necessary amendments to legislation. It is, if you like, a first cousin to Amendment 134A.
On Amendment 178C, given that the Investigatory Powers Commissioner and Ministers will be required to consider the privacy implications when exercising powers relating to new technology, it would be helpful for the Technology Advisory Panel to be required to have regard to those same matters—that is, those matters set out in the privacy clause, Clause 2. That would be not only helpful but appropriate. After all, as an advisory panel, it must have regard to how those exercising the powers would be constrained in exercising them. I beg to move.
Lord Rosser
I appreciate that I may be speaking prematurely since the Government have not moved their amendment on the Technology Advisory Panel. On the basis that they are not about to stand up and withdraw it, I thank the Government for the amendment establishing a Technology Advisory Panel, which reflects the recommendation by David Anderson QC in his report on the bulk powers provisions in the Bill, a report that we had secured during the passage of the Bill in the Commons and a recommendation on which we had an amendment in Committee in this House.
Lord Keen of Elie
I am obliged to the noble Lord, Lord Rosser, and will resist the temptation that he laid in my path. As he observed, the government amendments have been tabled to give effect to the recommendation of David Anderson’s bulk powers review.
The review demonstrated that the bulk powers are crucial. Mr Anderson’s report concludes that the powers,
“have a clear operational purpose”,
and,
“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”,
and that, where alternatives exist to their use,
“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or – crucially – slower”.
The review also concludes that bulk powers are vital across the full range of security and intelligence agency activity, including counterterrorism, cyberdefence, combating child sexual exploitation and organised crime, and supporting military operations; and that they have been used to disrupt terrorist activity, prevent bomb attacks, facilitate the rescue of hostages, thwart cyberattacks and save lives.
Mr Anderson’s report included a single recommendation, which was:
“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—
that is, the Investigatory Powers Commissioner—
“to advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability and development of techniques to use those powers while minimising interference with privacy”.
Following careful consideration of this recommendation, we agree with Mr Anderson’s assessment that those authorising, approving and overseeing the exercise of bulk powers must be alert to the impact of technological change on those powers’ utility and impact. These amendments therefore give effect to Mr Anderson’s recommendation in full.
The amendments provide that a Technology Advisory Panel must be established by the Investigatory Powers Commissioner and, in line with Mr Anderson’s recommendation, members of the panel would be appointed by, and clearly accountable to, the commissioner. They also provide that the role of the panel is to advise the Investigatory Powers Commissioner, the Secretary of State and Scottish Ministers on precisely those matters set out in David Anderson’s recommendation —namely, the impact of changing technology on the exercise of investigatory powers, and the availability and development of techniques to use such powers while minimising interference with privacy. The Investigatory Powers Commissioner would have the power to direct the panel to provide advice on any issue relevant to these matters.
While David Anderson’s review was in relation specifically to the bulk powers in the Bill, we agree with his view that there is no reason to restrict the scope of the Technology Advisory Panel just to those powers. Indeed, the panel giving advice in relation to the targeted powers could be just as valuable. As such, the amendments make clear that the panel’s role would extend to providing advice on all investigatory powers whose exercise is subject to review by the commissioner, which of course includes all the investigatory powers under the Bill.
To ensure that the panel would be able to undertake its role effectively, the amendments also make clear that its members would have the same right to access information as judicial commissioners. This means that any relevant person, such as any member of a public authority, must disclose or provide to a member of the panel all such documents and information as that member may require in order to carry out their functions.
We also agree with David Anderson that it should be mandatory for the Technology Advisory Panel to produce an annual report on the exercise of its functions. The amendments would therefore require that the panel make such a report to the Investigatory Powers Commissioner as soon as reasonably practicable at the end of each calendar year. At the same time as providing the report to the commissioner, a copy would also need to be sent to the Secretary of State and to Scottish Ministers where the report related to matters for which Scottish Ministers are responsible. To ensure sufficient transparency about the panel’s work, the amendments would require the Investigatory Powers Commissioner to include information about the work of the panel in their annual report.
I turn to the opposition amendments that have been tabled to the new clause establishing the Technology Advisory Panel. The first of these amendments would expand the role of the panel explicitly to provide advice to the commissioner on safeguards. While I appreciate what is intended by the amendment, I do not think it is necessary. The panel’s role is to advise on the impact of changing technology on the exercise of investigatory powers. Therefore, if technology changes in a way which means that existing safeguards are no longer appropriate or if new safeguards are needed to protect privacy, the panel can provide such advice to the commissioner and the Secretary of State. The panel must provide advice when asked to do so, but may also provide advice as it considers appropriate. While I appreciate the intent behind the amendment, I believe that the clause as drafted already provides for such advice to be given by the panel. Therefore, I do not believe that the noble Baroness’s amendment is necessary.
The second amendment to which she referred would expand the role of the panel to provide advice on an additional matter, namely,
“the impact of changing technology on the interpretation of the law and any amendments to legislation required to ensure the application of the provisions of this Act to changed technology”.
This amendment is neither necessary nor desirable. The role of the panel would, rightly, be squarely to provide advice on the impact of technology on the exercise of investigatory powers. This clearly defined role will ensure that members of the panel will be exactly what we need them to be: technical experts. David Anderson’s recommendation was designed to fill a gap. He was conscious that the Investigatory Powers Commissioner and judicial commissioners will be senior judicial figures. So, while they will be experts in the law and the interpretation of the law, they will not necessarily be experts in technology. What he felt was needed, and what the Government agree is needed, is technical experts to provide technical advice. In seeking to expand the panel’s remit to provide legal advice as well, I strongly fear we would end up with lawyers rather than technical experts. Indeed, David Anderson specifically warned that,
“the technological expertise of the TAP should not be unduly diluted”.
I pause to wonder whether one could ever dilute something with a lawyer, but I continue. That is exactly what this amendment would do, and that is why we firmly believe that it should be resisted.
This brings me to the amendment, which would permit the commissioner to make a report on his or her views about the legal operation of the Bill but would not place a duty on the commissioner to do so. I appreciate the sentiment behind the amendment, but I believe it is unnecessary. Clause 212 already gives the Investigatory Powers Commissioner a very wide remit to report on any matter relating to the functions of the judicial commissioners. That will, of course, permit the IPC, as he or she thinks fit, to report on the legal interpretation of the Bill. However, I hope that the IPC will not feel it necessary to do so, or at least to do so often. That is because the Bill serves to put beyond doubt the powers available to the state and the safeguards that apply to them. In the words of David Anderson, the Bill,
“restores the rule of law and sets an international benchmark for candour”,
but if the commissioner felt the need to report on the legal operation of the Bill, he could already do so.
Finally, Amendment 178C would require the panel to have regard to the same matters which a public authority must have regard to, as set out in Clause 2, which is referred to as the privacy clause. I appreciate the spirit of this amendment, but I believe it is unnecessary. Clause 2 is already clear that whenever exercising certain powers, such as to authorise warrants, all public authorities must have regard to the issues outlined in the privacy clause, but of course the Technology Advisory Panel will not be exercising such powers, so the amendment does not, in that context, make sense. If the intention is that when the panel gives advice it should bear in mind the various privacy considerations contained in Clause 2, then the amendment is also unnecessary, since the requirement, contained in government Amendment 178, that the panel advise on,
“the impact of changing technology on the exercise of investigatory powers”,
already includes advising on the ability to exercise those powers within the statutory framework and subject to all the safeguards contained in the privacy clause. Of course, the whole point of the Technology Advisory Panel, as specified in the government amendment, is to advise on techniques to “minimise interference with privacy”. So I really think that this amendment is unnecessary.
I invite the noble Baroness to withdraw the amendment.
Baroness Hamwee
My Lords, with the leave of the House, I recognise that this is Report stage. I was aware, of course, that the panel will not be a public authority, and that is why I framed Amendment 178C as I did: the Technology Advisory Panel would need to,
“have regard to the matters”,
in Clause 2, rather than be bound by them. I suggested the amendment because subsection (1)(b) of government Amendment 178 talks about, “minimising interference with privacy”, and that seemed to me not nearly as strong as the privacy clause, Clause 2, which we took to bits but welcomed earlier in the passage of the Bill. I beg leave to withdraw Amendment 134A.
(a) deciding—(i) whether to serve, vary or cancel a monetary penalty notice under section 7 or paragraph 16 of Schedule 1, a notice of intent under paragraph 4 of that Schedule or an information notice under Part 2 of that Schedule, or(ii) the contents of any such notice,(b) deciding whether to approve the issue, modification or renewal of a warrant,(c) deciding whether to direct the destruction of material or how otherwise to deal with the situation where—(i) a warrant issued, or modification made, for what was considered to be an urgent need is not approved, or(ii) an item subject to legal privilege is retained, following its examination, for purposes other than the destruction of the item,(d) deciding whether to—(i) approve the grant, modification or renewal of an authorisation, or(ii) quash or cancel an authorisation or renewal, (e) deciding whether to approve—(i) the giving or varying of a retention notice under Part 4 or a notice under section 228 or 229, or(ii) the giving of a notice under section 86(10)(b) or 233(9)(b),(f) participating in a review under section 86 or 233,(g) deciding whether to approve an authorisation under section 200(3)(b),(h) deciding whether to give approval under section (Additional safeguards for items subject to legal privilege: examination)(4),(i) deciding whether to approve the giving or varying of a direction under section 203(3),(j) making a decision under section 209(1),(k) deciding whether to order the destruction of records under section 103 of the Police Act 1997, section 37 of the Regulation of Investigatory Powers Act 2000 or section 15 of the Regulation of Investigatory Powers (Scotland) Act 2000,(l) deciding whether to make an order under section 103(6) of the Police Act 1997 (order enabling the taking of action to retrieve anything left on property in pursuance of an authorisation),(m) deciding—(i) an appeal against, or a review of, a decision by another Judicial Commissioner, and(ii) any action to take as a result.”
Lord Paddick
“Notification by the Investigatory Powers Commissioner
(1) The Investigatory Powers Commissioner shall notify the subject of a warrant (“P”) which is—(a) a targeted interception warrant issued under Part 2,(b) a targeted examination warrant issued under Part 2,(c) a targeted equipment interference warrant issued under Part 5, or(d) a targeted examination warrant issued under Part 5,that P has been so subject, in accordance with this section.(2) Notification shall not be given if—(a) P is suspected of being involved in terrorism-related or other criminal activity,(b) it might prejudice any continuing or anticipated investigation concerning P or any other person, or(c) the Investigatory Powers Commissioner determines that it is in the interests of national security or the public interest in preventing or detecting serious crime that it is not given;and in any event notification may be given only if the investigation to which the warrant relates has concluded and there is no suspicion that P is engaged in any unlawful activity.(3) The notification—(a) shall inform P of the provisions for the authorisation or warrant, but(b) shall include no details of the methods used or any other matter which might hinder any future investigation into P or any other person, and(c) shall be given in writing within 90 days after— (i) the conclusion of the investigation (subject to subsection (2));(ii) cancellation of the authorisation or warrant;(iii) a determination that it may be given having regard to the matters referred to in subsection (2)(c).”
Lord Paddick
My Lords, I shall also speak to Amendments 137B to 137F in my name and that of my noble friend Lady Hamwee. We return to the issue of informing innocent people when they have been subjected to targeted surveillance by law enforcement or the security and intelligence agencies. The European Court of Human Rights said in 2007:
“As soon as notification of targeted surveillance can be made without jeopardising the purpose of the surveillance after its termination, information should be provided to the persons concerned”.
When we raised the issue in Committee, the Minister raised a series of quite reasonable objections, which we have tried to address in this new amendment.
In Committee, the Minister said:
“It would not be practical, for example, for the commissioner to make everyone whose data were subject to a data retention notice aware of that fact”.
Of course, we agree. We therefore restrict the notification requirement to targeted interception warrants, where a person’s communications are intercepted, and targeted examination warrants, where communications are acquired in bulk and a UK citizen’s communications are among those acquired in bulk and the security and intelligence agencies wish to examine those communications. The provisions would also apply where a targeted equipment interference warrant is used. This would ensure that only when the specific individual’s communications are intercepted or equipment interfered with would notification have to be considered.
In Committee, the Minister said that,
“we would need to notify suspected criminals and terrorists that they have been under investigation just because a specific ongoing investigation had stalled or, indeed, had concluded with evidence of wrongdoing but with insufficient evidence to bring a prosecution”.
We have therefore written into the amendment that notification shall not be given if the person is suspected of being involved in terrorism-related or other criminal activity.
In Committee, the Minister said that,
“suspected criminals and terrorists will often appear on the radar of the police and the security services at different times in the context of different investigations. It would clearly not be appropriate to inform them that investigatory powers had been used against them in a particular case”.
Of course, we agree. The amendment now states that notification shall not be given if it might prejudice any continuing or anticipated investigation concerning the subject of the surveillance or any other person.
The Minister said in Committee that our amendment,
“would put unreasonable burdens on all public authorities covered by this Bill to require them constantly to need to make a case to the commissioner as to whether it would hamper national security or serious crime investigations if subjects were told that investigatory powers had been used against them”.
We do not agree. We hope that the number of occasions when completely innocent people are targeted will be small and the amendment now includes the provision that notice should not be given if the Investigatory Powers Commissioner determines that it is in the interests of national security, or the public interest in preventing or detecting serious crime, that it is not given. In most cases, this will be obvious and require no further justification from the public authorities.
The Minister in Committee further objected that notification would,
“not just run contrary to the long-standing policy of successive Governments of neither confirming nor denying any specific activity by the security and intelligence agencies, but would essentially require the techniques the agencies use in specific cases to be made public”.—[Official Report, 5/9/16; col. 858.]
It has not been the long-standing policy of successive Governments to deny that the security services kept a record of the details of every phone call made in the UK until recently and it is not a reasonable argument simply to say, “That’s what we’ve always done”. However, we have taken on board the Minister’s other criticisms and included in the amendment that notification,
“shall include no details of the methods used or any other matter which might hinder any future investigation”.
Having, I believe, dealt with all the objections the Minister raised in Committee, I hope the Minister responding will reconsider whether post-event notification could, in the circumstances I have described, be allowed, and that the Government will accept the amendment.
Amendments 137B to 137E are related to Amendment 137A, to the extent that they seek to tighten up on error reporting. Amendment 137B deletes the phrase “the Commissioner considers that” from Clause 209(1), so that the commissioner must report a serious error whether or not they consider it so. Whether the error is serious should be an objective test, not a subjective consideration by the commissioner. Amendment 137C deletes the condition that,
“it is in the public interest for the person to be informed”.
Surely, if the error is serious it should be reported—or, to put it another way, surely it must always be in the public interest if the error is serious.
Amendment 137D would delete the provision stating that notification should be given only if the error has caused “significant” prejudice or harm to the person concerned, and adds wording so that the clause would state that they should be notified if the error,
“has caused or may cause prejudice or harm to the person concerned”.
The argument here has echoes of an amendment that the Government rejected earlier on Report—that asking a commissioner to make a decision on whether the prejudice or harm is significant muddies the waters.
Amendment 137E would delete Clause 209(9)(b), which defines a relevant error. There appears to us to be no need to describe in regulations the kind of error to which these provisions relate. We believe that the definition in Clause 209(9)(a) is sufficient.
Amendment 137F relates to the final paragraph of Clause 209, which states that the Investigatory Powers Commissioner should,
“keep under review the definition of ‘relevant error’”.
We have added a requirement that any recommendations should be included in reports made under Clause 212, which covers annual and other reports required from the Investigatory Powers Commissioner.
I beg to move Amendment 137A.
Lord Rooker (Lab)
Can the noble Lord explain proposed new subsection 3(b)? Could the subject of a warrant challenge that subsection using other legislation —on the fact that there are “no details”, for example? Is it open to challenge by that person, using any of the other laws on the statute book?
Lord Paddick
I am grateful to the noble Lord, Lord Rooker. I have absolutely no idea whether they could or could not.
Lord Rooker
I submit that they could. The lawyers will find a way to fill the courts with challenges from the crooks and spivs we are trying to protect the British public from. But I will wait for the Minister’s technical answer, rather than the one I gave.
Lord Beith (LD)
To pose a legal challenge which is not based on any instance or evidence of the basis on which such a challenge could be made—I certainly cannot think of a basis on which someone could require the production of knowledge of the means used for interception, based on existing legislation.
Lord Keen of Elie
Amendment 137A seeks to insert a provision into the Bill that would require the Investigatory Powers Commissioner to notify the subject of a targeted interception or equipment interference warrant in certain circumstances. The amendment tries to tightly draw those circumstances, and I am grateful to the noble Lord, Lord Paddick, for recognising in drafting it that a significant number of factors should rightly preclude such notification from taking place. Nevertheless, I still think the amendment could threaten to undermine the capabilities that law enforcement and the security and intelligence agencies rely on to pursue the most serious wrongdoers. The amendment recognises that notifying a person that they have been the subject of surveillance may have an immediate impact on an investigation—or it may have damaging effects on the public interest or national security more broadly.
That being the case, it is extremely difficult to envisage a scenario where notification could responsibly be allowed to occur. Notifying a person that their communications have been intercepted, irrespective of whether that notification included any further details about the methods used, would necessarily risk hindering a future investigation. For example, there will be circumstances where a terrorist or serious criminal who was previously the subject of a warrant will no longer be an active suspect in an investigation. Advising that individual that they have been the subject of interception may help them to evade detection if they were minded to return to or resume criminal activity.
On one reading, then, the amendment would not provide for disclosure other than where a person has been the subject of deliberate wrongdoing or a serious error. If that is the intention behind the amendment—and I fear it is not—it is redundant, because there is already provision in the Bill to notify people who have been the subject of serious errors.
The alternative, of course, is that the amendment should provide for individuals to be notified in a wider range of circumstances. I find that prospect troubling. As I say, it is never possible to know whether an individual will return to criminality in the future. Even if they do not, revealing the fact that they were the subject of a warrant may provide some small insight into the techniques and capabilities used by law enforcement and the security and intelligence agencies. That, in turn, would provide an avenue for the most determined and capable actors to piece together a picture of the agencies and how they work, handing an advantage to those we are working hard to pursue—let alone the prospect that they might seek disclosure by way of a review of the conduct of the authorities in order to determine exactly what methodology had been employed. For all these reasons, I hope the noble Lord will be prepared to withdraw this amendment.
I turn to Amendments 137B to 137F, which, as the noble Lord indicated, are in a sense consequential on his primary amendment, and which deal with error reporting as provided for in Clause 209. Clause 209 is of the utmost importance. It provides that if a person has been the subject of a serious error, and it would not be contrary to the public interest, the commissioner must inform that individual of the error and their right to apply to the Investigatory Powers Tribunal. The judicial commissioner must provide such details as considered necessary for the person to bring a claim.
Clause 209 seeks to maintain a very delicate balance between two important but competing interests. On one hand, there is the right of the individual who has suffered harm as a result of the error to seek some sort of redress. On the other, there is the long-standing security and intelligence agency principle of neither confirming nor denying that an individual has been the subject of investigatory powers. This principle is vital to the security and intelligence agencies, as it prevents those who would wish to do us harm launching spurious complaints and claims in order further to understand the agencies’ most sensitive capabilities. I hope the noble Lord will agree that, given the fine balance between these two principles, it is right that the decision be taken on a case-by-case basis by the commissioner, a senior member of the judiciary who will have full access to the facts on which to base their decision.
Amendments 137B and 137C would remove the commissioner’s discretion to make that judgment. He would no longer be able to consider how the wider public interest would be best served, and would instead be compelled to tell an individual if they had been the subject of a serious error, regardless of the consequences and the harm that might be caused. I do not think that is right. It is, for example, conceivable that an investigation into a dangerous criminal gang may result in action mistakenly being taken against an innocent associate of one of the gang members. That would be unfortunate, and the commissioner would undoubtedly want to ensure that remedial action was taken at an appropriate time. But before doing so, it is right that the commissioner should consider the public interest in informing the person, balanced against the risk of undermining an ongoing investigation, and that is what the clause as drafted provides for.
Amendment 137D seeks to require notification where the error has not caused serious harm or prejudice but may do so in the future. I do not think it necessary or appropriate, given the difficult balance that has to be struck here, for persons to be informed when there is such an error. This would put the commissioner in the difficult position of speculating on potential future consequences. Additionally, the commissioner does not get only one opportunity to assess the harm that has occurred. We would of course expect the commissioner to keep under review the consequences of an error and, if it resulted in harm at some point in the future, it would be open to the commissioner to inform the individual at that point. This seems a more sensible approach than putting the commissioner in the position of second-guessing what potential future consequences may one day occur or not occur.
Lord Paddick
I am very grateful to the noble and learned Lord for his explanations, which I will take time and care to read particularly in relation to Amendments 137B to 137F, the latter amendments. Regarding Amendment 137A, I am still concerned at what might happen should somebody bring an action before the European Court of Human Rights, bearing in mind what it has said about the importance of informing people who have been the subject of targeted surveillance. However, at this stage I am prepared to leave that to the courts rather than to the House this evening and on that basis, I beg leave to withdraw the amendment.
Lord Keen of Elie
“(3A) In addition to consulting the Secretary of State under subsection (3), the Judicial Commissioner must also consult the Scottish Ministers if it appears to the Commissioner that providing the advice or information might be prejudicial to—(a) the prevention or detection of serious crime by a Scottish public authority, or(b) the continued discharge of any devolved functions of a Scottish public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.(3B) In subsection (3A)—“devolved function” means a function that does not relate to reserved matters (within the meaning of the Scotland Act 1998), and“Scottish public authority” has the same meaning as in the Scotland Act 1998.”
Lord Keen of Elie
My Lords, I shall speak to Amendment 138 and the other amendments in this group, which would ensure that the Scottish Government are provided with appropriate means to engage with and support the work of judicial commissioners relating to devolved powers in Scotland.
Clause 210 allows a judicial commissioner to provide advice and information to any person. It requires the judicial commissioner to consult the Secretary of State first where providing advice and information might be contrary to the public interest. It is clearly appropriate that Scottish Ministers are similarly consulted if the provision of advice and information by the judicial commissioner may be prejudicial specifically to activities that fall under those Ministers’ responsibility. Accordingly, Amendments 138 and 139 would require the judicial commissioner to consult additionally the Scottish Ministers when providing information and advice that may be prejudicial to the prevention or detection of serious crime in Scotland, or the continued discharge of any devolved functions of a Scottish public authority.
Clause 216 sets out the funding arrangements for the Investigatory Powers Commissioner and the judicial commissioners. Amendment 148 would grant the Scottish Ministers the power to make such payments as they consider appropriate to judicial commissioners for work relating to the exercise of devolved functions by public authorities in Scotland. This simply maintains the current position, as the Scottish Government currently have the power to pay surveillance commissioners who carry out their functions wholly or mainly in Scotland such allowances as the Scottish Ministers consider appropriate. The surveillance commissioners will be abolished by the Bill, and their functions taken on by the Investigatory Powers Commissioner and the judicial commissioners. Accordingly, I beg to move Amendment 138.
Baroness Hamwee
My Lords, the noble and learned Lord may have answered one of my questions about Amendment 148. It was about whether this sort of arrangement is in place elsewhere because, on reading it, it seemed that there might be scope for some squabbles as to who should be responsible for paying how much. However, I think he said that this is already working satisfactorily under the current arrangements. My other question is about the term “allowances”, which in normal language means less than paying salaries. It does not address payment for facilities, infrastructure and so on. It seemed a curious term to use but that is probably because I do not understand quite how the system will work. Allowances, to most of us, sounds like more like an ex gratia arrangement.
Lord Keen of Elie
Might I be permitted to respond briefly to the noble Baroness on these points? First, these amendments have been agreed with officials in the Scottish Government and reflect an existing arrangement whereby the allowances of surveillance commissioners are determined by the Scottish Ministers in that context. “Allowances” is used there, as I understand it, because we are not relying upon them for payment of certain standing charges incurred in setting up the commissioners, for example.
“( ) information about the operation of the safeguards conferred by this Act in relation to items subject to legal privilege, confidential journalistic material and sources of journalistic information,”
Lord Janvrin
“( ) information about the following kinds of warrants issued, considered or approved during the year— (i) targeted interception warrants or targeted examination warrants of the kind referred to in section 17(2), (ii) targeted equipment interference warrants relating to matters within paragraph (b), (c), (e), (f), (g) or (h) of section 96(1), and(iii) targeted examination warrants under Part 5 relating to matters within any of paragraphs (b) to (e) of section 96(2),”
Lord Janvrin (CB)
My Lords, I shall speak to Amendments 142 and 145 to Clause 212. These are in my name and I speak as a member of the Intelligence and Security Committee. This clause deals with the annual reports to be made by the Investigatory Powers Commissioner to the Prime Minister on the functions of the judicial commissioners.
The subject of Amendment 142 concerns those targeted warrants which relate to groups of people engaged in a common activity or sharing a purpose, commonly referred to as thematic warrants. The Intelligence and Security Committee has considered that thematic warrants have the theoretical potential to intrude upon the privacy of a great many people and there have been concerns as to the widespread intrusion they might theoretically be used to authorise. In the committee’s report on the draft Bill, we recommended that such warrants should be subject to greater constraints. In seeking to address this in the other place, the chairman of the ISC explored, first, whether the duration of these warrants could be limited or, secondly, whether the grounds on which they could be authorised could be drawn more narrowly.
In response, the Government presented the committee with convincing classified evidence regarding the use of these forms of warrants across a number of real operations, involving serious threats to our security. This evidence was reassuring in demonstrating that these operations, enabled by the so-called thematic warrants, intruded only on small and defined groups of people, not on the hundreds or even thousands of people that some perhaps feared might be the case. Nevertheless, the ISC believes that some form of additional constraint is justified and has therefore been exploring options with the Government over recent months. The conclusion is that we might best achieve this aim by strengthening the scrutiny given to these warrants. This is the aim of Amendment 142 to Clause 212.
The amendment places a specific requirement on the commissioner to report on thematic warrants, thereby exposing them to increased scrutiny by the commissioner, audit by the commissioner’s staff and, through the commissioner’s published reports, debate and scrutiny by Parliament, the media and public. I am most grateful for the Government’s co-operation in finding a solution to this issue relating to thematic warrants, and I hope the Minister will be able to support this amendment.
If that is the case, it would be helpful if it were possible for the Minister to outline in his comments the degree of disclosure about thematic warrants that he might expect to see in those reports. The ISC’s assumption is that it would include the number of thematic warrants applied for and issued, but it hopes that it might also include an indication of the number of people covered by the warrants. It would improve transparency and public reassurance if it can be demonstrated in this manner that these warrants are not as broad as some have feared.
Amendment 145 to Clause 212 relates to the referral of cases to the Investigatory Powers Commissioner. This is an issue I raised in Committee. In its report on the draft Bill, the Intelligence and Security Committee recommended that it should be able to refer matters to the IP Commissioner so that the commissioner can undertake detailed investigations or audits about concerns raised by the ISC. This enables the oversight mechanisms to complement one another, with the ISC considering the strategic issues and overall policies and the commissioner focused on specific authorisations and warrants for individual operations. Noble Lords will note that the power of referral from the ISC to the IP Commissioner has already been introduced into the Bill at Clause 214, and we are grateful for the Government’s assistance in its inclusion.
This further, very small, amendment now picks up the point I raised in Committee that any report the commissioner might make to the Prime Minister as a result of a referral from the ISC should also be shared, as appropriate, with the committee. This will strengthen the oversight community as a whole, and I hope the Government will feel able to support the amendment. I beg to move.
Earl Howe
My Lords, as we have discussed in previous debates in this House and in the other place, the use of thematic warrants is crucial to our law enforcement and security and intelligence agencies, but we welcome these amendments, which will provide reassurance that these warrants will be subject to specific scrutiny by the Investigatory Powers Commissioner and enhance transparency about their use.
The noble Lord, Lord Janvrin, invited me to comment on the degree of disclosure I would expect to see in the commissioner’s report. In my view—and I hope the noble Lord will understand this—it would not be appropriate for the Bill or indeed government to fetter the independence of the commissioner by specifying the detail of what he may choose to publish in relation to the use of thematic warrants. In due course the commissioner will wish to consider whether his duty to publish information about the use of these warrants is best satisfied by the publication of data such as the number of thematic warrants issued during a limited period or other information relating to the way in which thematic warrants are used in practice. These decisions will rightly rest with the Investigatory Powers Commissioner. However, I welcome the amendment which imposes a very clear duty on the commissioner to ensure that these warrants are subject to particularly robust scrutiny and that information is regularly put in the public domain about their use. Indeed, I would expect the commissioner to ensure that his report serves to illuminate any areas that cause him particular concern.
The process by which the Intelligence and Security Committee of Parliament can refer issues to the Investigatory Powers Commissioner was previously discussed in this House. It is right that the committee can bring issues that merit further investigation to the attention of the IPC, who may then decide whether to take further action. In addition, it is important that the right balance is struck between the independence of the IPC on the one hand and respecting the remit of the committee on the other hand. By requiring that the Prime Minister provides a copy of any IPC report that follows an investigation, inspection or audit carried out following a committee referral in cases where the report falls within the remit of the committee, this amendment finds that balance. Accordingly, I am happy to accept both these amendments.
Lord Janvrin
I thank the Minister for his helpful response. I take his point about the importance of the independence of the Investigatory Powers Commissioner.
“( ) information about the work of the Technology Advisory Panel,”
Lord Janvrin
“(11) Subsection (12) applies if the Prime Minister receives a report from the Investigatory Powers Commissioner under subsection (1) or (4) which relates to an investigation, inspection or audit carried out by the Commissioner following a decision to do so of which the Intelligence and Security Committee of Parliament was informed under section 214(2).(12) The Prime Minister must send to the Intelligence and Security Committee of Parliament a copy of the report so far as it relates to—(a) the investigation, inspection or audit concerned, and(b) the functions of the Committee falling within section 2 of the Justice and Security Act 2013.”
“(3) The Scottish Ministers may pay to the Judicial Commissioners such allowances as the Scottish Ministers consider appropriate in respect of the exercise by the Commissioners of functions which relate to the exercise by Scottish public authorities of devolved functions.(4) In subsection (3)—“devolved function” means a function that does not relate to reserved matters (within the meaning of the Scotland Act 1998), and“Scottish public authority” has the same meaning as in the Scotland Act 1998.”
“(5) The Investigatory Powers Commissioner or any other Judicial Commissioner may, to such extent as the Commissioner concerned may decide, delegate the exercise of functions of that Commissioner to any member of staff of the Judicial Commissioners or any other person acting on behalf of the Commissioners.(6) Subsection (5) does not apply to—(a) the function of the Investigatory Powers Commissioner of making a recommendation under section 205(4)(e) or making an appointment under section (Members of the Panel)(1),(b) any function which falls within section 207(8), or(c) any function under section 55(3) or 125(3) of authorising a disclosure,but, subject to this and the terms of the delegation, does include functions which have been delegated to a Judicial Commissioner by the Investigatory Powers Commissioner.(7) The delegation under subsection (5) to any extent of functions by the Investigatory Powers Commissioner or any other Judicial Commissioner does not prevent the exercise of the functions to that extent by the Commissioner concerned.”
“(2A) The Secretary of State may by regulations, with the consent of the Northern Ireland Assembly, provide for the abolition of the office of the Investigatory Powers Commissioner for Northern Ireland.(2B) The power to make regulations under subsection (2A) (including that power as extended by section 242(1)(c)) may, in particular, be exercised by modifying any provision made by or under an enactment (including this Act).(2C) Regulations made by virtue of subsection (2B) may, in particular, repeal— (a) section 61 of the Regulation of Investigatory Powers Act 2000 (the Investigatory Powers Commissioner for Northern Ireland), and(b) the words “or the Investigatory Powers Commissioner for Northern Ireland” in section 207(4)(f) of this Act.”
““the Chief Surveillance Commissioner” means the Chief Commissioner appointed under section 91(1)(a) of the Police Act 1997,”
““the other Surveillance Commissioners” means—the Commissioners appointed under section 91(1)(b) of the Police Act 1997, andthe Assistant Surveillance Commissioners appointed under section 63(1) of the Regulation of Investigatory Powers Act 2000,”
“( ) the Technology Advisory Panel,”
“(1A) A code about the exercise of functions conferred by virtue of Part 2, Part 5 or Chapter 1 or 3 of Part 6 must also contain provision about when circumstances are to be regarded as “exceptional and compelling circumstances” for the purposes of any provision of that Part or Chapter that restricts the exercise of functions in relation to items subject to legal privilege by reference to the existence of such circumstances.(1B) The Investigatory Powers Commissioner must keep under review any provision included in a code by virtue of sub-paragraph (1A).”
Baroness Hamwee
Baroness Hamwee
My Lords, Amendment 160 is a probing amendment, and the debate should be short. Schedule 7 provides for codes of practice. Our debates on the previous day of Report on journalistic material, which is referred to in paragraph 2(2) of Schedule 7, made me have a look at the personal records which are also referred to in that paragraph as being “relevant confidential information”. I was concerned about health records, because the information is described as that,
“which is held in confidence by a member of a profession”.
I wanted to check that health records would fall within this. A health authority obviously does not cover all of this. There are health records which are held for entirely proper purposes but not by people that one might describe as being professionals—or certainly not members of a profession. So I decided, even at this late stage, to table this amendment in order that we could understand precisely what is meant by confidential information when it consists of personal records. I beg to move.
Earl Howe
My Lords, Amendment 160 would amend Schedule 7 to the Bill to require that every code of practice made under the Bill must provide guidance in relation to personal records held by a health authority. I hope I can convince the noble Baroness that this amendment is unnecessary. Schedule 7 already requires that the codes of practice must make provision relating to personal records held by a member of a profession, which would include health records held by a medical professional.
The Government do not believe that it is necessary to impose a similar requirement for personal records held by a health authority, as that is a discrete issue which will not be relevant to all of the codes of practice. For example, it will not be relevant to communications data. Of course, that does not mean that the codes cannot include such material should it be necessary to do so. There is already a reference to a health service body in the draft personal datasets code, for example.
The codes of practice have been published in draft to help facilitate parliamentary scrutiny of the Bill, but they will be subject to consultation and separate further scrutiny by Parliament after Royal Assent. That will provide noble Lords and others with the opportunity to consider the detail contained in the codes, including to argue the case for the inclusion of particular issues in particular codes of practice. On that basis, I invite the noble Baroness to withdraw the amendment.
Baroness Hamwee
My Lords, that is helpful and it has enabled me to make my point, which may of course be one that we will come back to, depending on how we view the codes when we come to deal with them. I thank the Minister and beg leave to withdraw the amendment.
“( ) The Secretary of State may by regulations, with the consent of the Northern Ireland Assembly, amend subsection (3) so as to add the Court of Appeal in Northern Ireland to the list of courts mentioned there.”
“(bb) the issue, modification, renewal or service of a warrant under Part 2 or Chapter 1 of Part 6 of the Investigatory Powers Act 2016 (interception of communications);”
“(czd) conduct of a kind which may be required or permitted by a warrant under Part 5 or Chapter 3 of Part 6 of that Act (equipment interference);(cze) the issue, modification, renewal or service of a warrant under Part 5 or Chapter 3 of Part 6 of that Act;(czf) the issue, modification, renewal or service of a warrant under Part 7 of that Act (bulk personal dataset warrants);(czg) the giving of an authorisation under section 200(3)(b) (authorisation for the retention, or retention and examination, of material following expiry of bulk personal dataset warrant);(czh) the giving or varying of a direction under section 203 of that Act (directions where no bulk personal dataset warrant required);(czi) conduct of a kind which may be required by a notice under section 228 or 229 of that Act (national security or technical capability notices);(czj) the giving or varying of such a notice;(czk) the giving of an authorisation under section 143(5)(c) or 179(5)(c) of that Act (certain authorisations to examine intercepted content or protected material);(czl) any failure to—(i) cancel a warrant under Part 2, 5, 6 or 7 of that Act, or an authorisation under Part 3 of that Act;(ii) cancel a notice under Part 3 of that Act;(iii) revoke a notice under Part 4, or section 228 or 229, of that Act; or(iv) revoke a direction under section 203 of that Act;(czm) any conduct in connection with any conduct falling within paragraph (c), (czb), (czd) or (czi);”
“( ) in subsection (6) (limitation for certain purposes of what is conduct falling within subsection (5))—(i) after “on behalf of” insert “an immigration officer or”, and(ii) after paragraph (d) insert—“(dza) the Competition and Markets Authority;”( ) after subsection (6) insert—“(6A) Subsection (6) does not apply to anything mentioned in paragraph (d) or (f) of subsection (5) which also falls within paragraph (czd) of that subsection.””
“( ) in subsection (7) after “if” insert “it is conduct of a public authority and”,”
“(bb) a direction under section 203 of that Act;(bc) a notice under section 228 or 229 of that Act;”
“(azb) an order quashing or revoking a direction under section 203of that Act;(azc) an order quashing or revoking a notice under section 228 or 229 of that Act;”
“Technology Advisory Panel
(1) The Investigatory Powers Commissioner must ensure that there is a Technology Advisory Panel to provide advice to the Investigatory Powers Commissioner, the Secretary of State and the Scottish Ministers about—(a) the impact of changing technology on the exercise of investigatory powers whose exercise is subject to review by the Commissioner, and(b) the availability and development of techniques to use such powers while minimising interference with privacy.(2) The Technology Advisory Panel must provide advice to the Investigatory Powers Commissioner about such matters falling within subsection (1)(a) or (b) as the Commissioner may direct.(3) Subject to this, the Panel may provide advice to the Investigatory Powers Commissioner about such matters falling within subsection (1)(a) or (b) as it considers appropriate (whether or not requested to do so).(4) The Panel may provide advice to the Secretary of State or the Scottish Ministers about such matters falling within subsection (1)(a) or (b) as it considers appropriate (whether or not requested to do so) but such advice to the Scottish Ministers may only relate to matters for which the Scottish Ministers are responsible.(5) The Panel must, as soon as reasonably practicable after the end of each calendar year, make a report to the Investigatory Powers Commissioner about the carrying out of the functions of the Panel. (6) The Panel must, at the same time, send a copy of the report to the Secretary of State and (so far as relating to matters for which the Scottish Ministers are responsible) the Scottish Ministers.”
“Members of the Panel
(1) The Investigatory Powers Commissioner must appoint such number of persons as members of the Technology Advisory Panel as the Commissioner considers necessary for the carrying out of the functions of the Panel.(2) Subject as follows, each member of the Panel holds and vacates office in accordance with the member’s terms and conditions of appointment.(3) A member of the Panel must not act in a way which the member considers to be contrary to the public interest or prejudicial to—(a) national security,(b) the prevention or detection of serious crime, or(c) the economic well-being of the United Kingdom.(4) A member of the Panel must, in particular, ensure that the member does not—(a) jeopardise the success of an intelligence or security operation or a law enforcement operation,(b) compromise the safety or security of those involved, or(c) unduly impede the operational effectiveness of an intelligence service, a police force, a government department or Her Majesty’s forces.(5) Section 213(2) and (7) (information powers) apply to a member of the Panel as they apply to a Judicial Commissioner.”