Investigatory Powers Bill

3rd reading (Hansard): House of Lords
Monday 31st October 2016 Lords Chamber

Third Reading

15:19

Clause 8: Civil liability for certain unlawful interceptions

Amendment 1

Moved by

[Baroness Hollins]

1: Clause 8, page 7, line 37, at end insert “, or
( ) in the course of its transmission by means of a public telecommunication system.”

[Baroness Hollins (CB)]

My Lords, I had hoped not to detain the House, but last night the Government indicated, to my surprise, that they will oppose this amendment. I hope noble Lords will understand the need for me to set out some of the context.

The debate on Report was very clear about the intention of our amendments to Clause 8, and the large majority in the Content Lobby affirmed this. The noble Earl the Minister helpfully suggested that our original amendments, as drafted, may not achieve our stated objectives. I took advice from the Public Bill Office at some length to clarify the amendment, as allowed for in the Companion to the Standing Orders, at Third Reading. Amendment 1 today aims to ensure that costs protections will apply to new claims alleging illegal phone or email hacking by newspapers, as was originally intended and as was debated.

If the clause is amended today, it will implement, to the limited degree that we are able in this Bill, the court costs incentives and protections of Section 40 of the Crime and Courts Bill, which Parliament overwhelmingly agreed over three years ago. So far the Government have failed to commence Section 40, in breach of that cross-party agreement, so this amendment is just one tiny step towards bringing some much-needed balance into the system.

I refer noble Lords to the report issued to Parliament by the royal charter Press Recognition Panel only last week, which clearly and cogently emphasised why such changes are needed and called on Her Majesty’s Government to commence Section 40. We should remember that the independent Press Recognition Panel audits press regulation; it is not a regulator.

I have had discussions with senior members of Her Majesty’s Government, who contacted me to persuade me not to pursue this amendment on the grounds that it may somehow delay Royal Assent for this important Bill, which has as one of its primary purposes the aim of improving national security. However, given the huge support that the amendments have received so far, I am not minded to give way to this pressure. Very briefly, I will explain why.

One argument being made by the press recently that small local newspapers will be at risk from Section 40 is wrong. Newspapers can simply choose to join a recognised regulator and get the same costs protections that the public will get, unlike newspapers that choose not to join. Since we last divided, there is now a recognised regulator: Impress. The limited amendments to this Bill will not affect small newspapers adversely at all—they do not hack phones. The local newspaper threat is a smokescreen. The protests are really coming from the big newspaper groups, which own most of the regional papers and in effect are using them as newsprint shields. It is the big companies preventing the small papers that they own from seeking the costs protection that flows from membership of a recognised regulator. It is precisely the small papers that will benefit from Section 40 protection—they will be much better placed to practise good investigative journalism—unless they choose voluntarily not to seek that protection. That should be their choice.

This is now urgent. Now that Impress has been recognised, many independent small publishers that are already Impress members are suffering actual detriment from the non-commencement of Section 40, and victims of non-Impress newspapers are not getting the costs advantages they were promised. It is complicated. A central theme in the Leveson report and the cross-party agreement to implement it was how to prevent political interference in press regulation in the interests of free speech. That is why the independent Press Recognition Panel was established, which is politician free. But political interference by the Government is what we are now seeing, with the Secretary of State holding the starting gun for the commencement of Section 40. The Secretary of State appears to accept that IPSO is nowhere near good enough but believes that political pressure will force it to improve to a point where it is on a par with Impress.

On behalf of victims of press abuse, the general public, newspaper readers, front-line journalists and those of us who gave evidence to the Leveson inquiry, I call on the Government to commence Section 40 as they promised to do when this House and the other place overwhelmingly passed it into law. If the Government do so now, we in this House will not need to see the Bill again. But if there are problems with the amendment which might affect security in some way—unbeknown to those of us who have added our name to it—perhaps the Government could meet me and interested parties, and allow a few days’ latitude to get this right. I beg to move.

[Lord Paddick (LD)]

My Lords, briefly, I support the noble Baroness. My understanding is that this amendment has been tabled because of a drafting issue in the amendment that was overwhelmingly passed by the House, on the basis of the principle of protecting those whose phones have been hacked into by newspapers which have not signed up to an independent complaints system. It is also because the original amendment applied only to private communication networks; Amendment 1 would change it to public communication networks. There is no question at all of a change in principle. I therefore do not understand why the Government would not agree to support this amendment, which is clearly simply to correct that drafting issue. On that basis, we will support the noble Baroness.

[Baroness O'Neill of Bengarve (CB)]

My Lords, I support my noble friend’s amendment. The situation is complex and I think everybody concedes that the amendment as passed by your Lordships’ House last week had deficiencies. However, it was agreed by the Public Bill Office that it was adequate, as it has agreed that the amendment which is now before your Lordships is adequate. It seems to me that the ball is in the Government’s court to try to work out a way in which to achieve this. We must remember that in this Bill we have, for good reasons to do with press freedom, given the media very considerable additional protections for journalistic sources. That is open to possible abuse because sometimes there is no source or there might be, let us say, an incorrect reporting of a source. The quid pro quo for that is surely some protection for the public. Amendment 1 is not perfect, but if it is not to be accepted by the Government, I hope that the Minister will suggest how the Government propose to deal with the evident lacuna, and the risk to members of the public, of having greatly empowered media.

[Lord Low of Dalston (CB)]

My Lords, in considering this amendment we need to be mindful of lessons from history. We have heard the tale before that the press will reform itself. Some noble Lords will remember similar debates following the 1990 Calcutt inquiry. When asked to report on the efficacy of the PCC in 1993, Sir David Calcutt said that it was not doing its job and that the time for statutory regulation had come. But Parliament lost its nerve and the press was allowed to carry on underregulated, with disastrous consequences for ordinary people. Predictably, the newspapers are telling us that IPSO is a much improved version of the PCC, but it falls woefully short of the standards set out by Lord Justice Leveson.

Since we last voted, the Government’s position has actually hardened. When setting out the Government’s response to the amendment of the noble Baroness, Lady Hollins, in Committee, the noble Earl, Lord Howe, said:

“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 continue to look at this issue closely … this is something that the Government are actively considering. … The position is that, for the time being, Section 40 remains under consideration”.—[Official Report, 11/10/16; col. 1809.]

Last Monday, on 24 October, the Secretary of State said at the Culture Select Committee that she was not minded to commence Section 40. The Times the next day—last Tuesday, 25 October—ran a triumphant front-page story based on what it later said were reliable government sources. It said:

“Westminster sources revealed last night that the ‘punitive elements’ of Section 40 of the Crime and Courts Act …‘will not go ahead’. The change of tack, which avoids a clash between Theresa May and the media, came on the eve of a decision to approve a new regulatory body”.

The Government have not informed Parliament of this and have not sought to correct the story.

15:30

Worse still, at the Select Committee the Secretary of State indicated that she was willing to abandon the Leveson process altogether and allow voluntary press regulation without any independent recognition process. She said:

“I am looking at all the representations to make sure that we get to that right conclusion. As I say, clearly I expect to see robust regulation of the press, which even if those regulators choose not to apply for recognition under the Press Recognition Panel, at least would meet the standards, if they chose to”.

In other words, this is no different from the self-regulation regime which characterised the PCC. She said that she would personally make the newspapers improve IPSO to a Leveson standard, but she did not say who, other than the press, herself or politicians like herself, would be the judge.

The noble Earl, Lord Howe, wrote to Peers after Committee on these matters. He wrote that the Government are clear that independent self-regulation is the way forward and want the industry to comply voluntarily with the reforms that were recommended by Leveson and are enshrined in the royal charter. When Peers met him before Report, he gave no indication of the Government’s change of policy. Perhaps he will do so now and clarify the situation for us.

We are now supposed to watch and wonder whether and how the Secretary of State will be able to stand up to the press industry. The Secretary of State appears to accept that IPSO is nowhere near good enough but believes that political pressure will force it to improve to a point where it is on a par with Impress. History tells us that such promises by government and regulator are worthless. For example, it is precisely what the PCC promised in the mid-1990s when trying to fend off legislation on privacy. These are tried and tested tactics used by the press. They are designed to retain the PCC position of sham regulation, as Leveson warned.

History tells us that we cannot rely on the press to regulate itself or on politicians who, as we know, are subject to manifold pressures from the press which they often find it difficult to stand up against. We need Section 40, and we need the amendment which the noble Baroness, Lady Hollins, has moved this afternoon in order to clarify what is being asked for.

[Lord Rosser (Lab)]

My Lords, when the amendments moved on Report by the noble Baroness, Lady Hollins, were discussed, the Government said that they did not believe that they would achieve the outcome she was seeking since the relevant clause dealt with the interception of private telecommunications systems, such as a company’s internal email or telephone system. The fact that the noble Baroness has been permitted the amendment before us at Third Reading suggests that it is accepted that it seeks to address the point made by the Government on Report; namely, that the amendments that were carried on Report do not achieve the outcome the noble Baroness is seeking.

I understand the Government oppose this amendment. Perhaps they will argue that this amendment also does not achieve the objective the noble Baroness is seeking. As the noble Lord, Lord Low of Dalston, reminded us, on Report the Government said that they fully understand that many noble Lords, particularly those who have been victims of press abuse, are frustrated about what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report, albeit that the Government went on to say that they did not accept that that frustration was justified.

I am not able to comment personally on whether this latest amendment, which was tabled at a very late stage, achieves its purpose or not. But I do know that the Government do not seem to have been particularly helpful so far in seeking to assist with what wording would achieve the purpose sought by the noble Baroness, Lady Hollins, and the other noble Lords who are signatories to the amendment concerned, bearing in mind these were amendments which, on Report, had the support of the House.

On Report, the Government accepted the commencement provision amendments, while making it clear that that did not mean that they had accepted, or would be accepting, the earlier amendment related to Leveson which had been passed by the House. Despite that earlier stance, the Government do not appear to have been willing to adopt the same approach to getting the wording right, in their view, for the amendment carried in this House on Report.

We will support this amendment if it is put to a vote. Therefore, if it is carried, the Government will have another opportunity, albeit in the Commons, to put forward wording which achieves the objective sought by the noble Baroness, Lady Hollins, and indeed up to now by this House in relation to this amendment and amendments already carried on Leveson-related issues, before the Commons makes a decision on whether to accept or reject the amendments passed by this House or to put forward an alternative amendment of its own.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we discussed this issue in some detail on Report. As we previously made clear, the cause of action, or tort, provided for in Clause 8 is intended to replicate the safeguard 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 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.

A number of noble Lords have spoken about the objective of the amendment. With great respect, the fundamental difficulty is that it really has nothing to do with the purpose or purposes of Clause 8. It is not, as the noble Lord, Lord Paddick, suggested, simply a case of deleting “private” and substituting “public” , or of seeking to amend the proposed amendment at this stage or to improve it—it simply has no place in the clause. Clause 8 was not intended to regulate the press or to deal with awarding costs in circumstances where such a case is brought against a publisher. It simply has no application in this context. I quite understand the concerns about Section 40 that have been expressed, and the question of commencements is understood and is under consideration. But to amend Clause 8 in this way is to ignore the very purpose of this part of the Bill.

The Bill already provides for a criminal offence where an individual has unlawfully intercepted communications. An individual convicted of such a crime is liable, on conviction on indictment, to imprisonment for a term of up to two years, a fine or indeed both. So anyone carrying out phone hacking would face, under this Bill, a criminal conviction. That is a significant penalty and, in our view, the appropriate penalty for such an offence.

As we made clear in the previous debate, there are already avenues for individuals to pursue civil claims against those who carry out unlawful interception such as phone hacking. For example, cases have been brought on the grounds of misuse of private information. Although I agree with the noble Baroness that the outcome of Leveson and press regulation are very important issues, I maintain that this Bill, and in particular Clause 8, is not the appropriate place to deal with them. I therefore invite the noble Baroness to withdraw her amendment.

[Baroness Hollins]

My Lords, thank you for contributing to our understanding of this problem a little further. At no point has the House been told that the amendments are not in scope. In fact, it was suggested to me over the weekend by members of Her Majesty’s Government that I should seek instead to place such amendments within another Bill, such as the Digital Economy Bill. I sought advice from the Public Bill Office but, after considering the matter at length, it advised me that that was not possible and they would not be within the scope of the Digital Economy Bill.

If the House supports the amendment today, as I hope it will, I will be more than happy to work with the Government to find a wording which does no more than provide for as much of the Section 40 costs incentives as could be provided in the scope of the Bill without going any further. I would not be asking the House, in ping-pong, to do anything that destabilises anything else in the Bill. The best solution, of course, would be for the Government to commence Section 40, as they promised and as they should. Then, we could drop all the amendments. It is the Government’s choice and always has been.

On previous occasions when I have had drafting difficulties—and this is a complicated Bill—Ministers have been most helpful in achieving the intentions of your Lordships’ House. I wrote to the noble Earl, Lord Howe, asking whether there were any technical difficulties with the amendment, and the answer was no.

I am not content with the answer given by the noble and learned Lord, and I wish to seek the opinion of the House.

15:41

Division 1

Ayes: 226

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Labour: 110
Liberal Democrat: 67
Crossbench: 37
Independent: 6
Bishops: 2
Green Party: 1
Plaid Cymru: 1

Noes: 186

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Conservative: 164
Crossbench: 20
Ulster Unionist Party: 1
UK Independence Party: 1

15:57

Clause 41: Special rules for certain mutual assistance warrants

Amendment 2

Moved by

[Lord Keen of Elie]

2: Clause 41, page 34, line 28, leave out “to which the warrant relates” and insert “authorised or required by the warrant”

[Lord Keen of Elie]

My Lords, I will now address a series of government amendments which are minor and technical in nature. They aim to correct minor drafting oversights and inconsistencies within the Bill, as well as to clarify provisions and make minor consequential changes. Clause 41 contains special rules that apply for certain mutual assistance warrants, and Amendments 2, 3 and 4 correct inconsistencies in language in this clause. Amendment 5 is consequential on amendments made on Report in this House, which clarified that a communication can be between machines as well as people. Amendment 10 corrects an inconsistency in language with regard to the renewal of equipment interference warrants. Amendments 21, 22 and 23 are all minor amendments to those clauses of the Bill that relate to bulk acquisition warrants. Amendment 33 is another technical amendment, which provides that Clause 272(4) comes into force on the day on which the Bill is passed. Finally, Amendments 34, 35 and 36 are all minor and technical amendments that are designed to improve and clarify the written language of the Bill. These minor and technical amendments will help to clarify the extent of the provisions of the Bill. I beg to move.

16:00

[Lord Rooker (Lab)]

My Lords, I support the Minister on this group of amendments. As I do not propose to speak on the next and final group, I just want to make a couple of general points about the Bill, which will take only a minute or two.

This is the final day of our deliberations on the Bill, which has had a remarkable passage through Parliament. That is mainly due to the fact that the Government had a draft Bill, and there was also the independent report on surveillance and the work of the Joint Committee. Added to that, the Government were willing to respond to points made by amending the Bill. There will of course be only one issue for the Members of the Commons, who will see a non-government amendment on the matter on which we have just voted and on which I do not wish to comment.

I hope that Labour Party Members in the House of Commons will support the hundreds of Lords amendments. Many of these have been proposed by members of parties other than the government party, although a lot have come from the Government. They make this legislation more than a government Act; in my view, it is truly a parliamentary Act, given the input from other parties.

When the Bill was introduced in the Commons in March this year, I broke a 15-year vow of silence by speaking at the Parliamentary Labour Party to oppose the idea that Labour should abstain if there was a vote at Second Reading. I pleaded for support for the Bill at that point. However, there are still people on the Labour Benches in the Commons who oppose the Bill and I think that my colleagues there should ignore them. It is not a snoopers’ charter; it is not draconian; and it is not a stop-and-search power for the digital age. It will make UK citizens safer. Whether one looks at things like the request filter, the oversight procedures, the privacy protection or the obligations on communications service providers, just to take four aspects, it is a Bill that deserves active support, not sniping from the sidelines or the Front Bench.

There is one hole in the Bill. The Bill is about the state and its duties and responsibilities. The gaping hole now is the use that commercial service providers make of personal information given to them by citizens as they use the services. On page 41 of the report of the RUSI panel, on which I had the honour to serve, we listed the word length of the terms and conditions of popular internet services, and I do not propose to go over those again. All we do as users is tick a box, which means that companies analyse the content of our search results and the content of our emails when we send and receive them and when they are stored. This is done so that we can receive targeted advertising. Indeed, one service provider has filed a patent about being able to sense the mood of the user so that it is better able to make more profit. The Government will not be allowed to do that under this legislation, and Labour MPs should think about that if they are asked to oppose the Bill.

[Lord West of Spithead (Lab)]

My Lords, I support these amendments and I strongly support my noble friend Lord Rooker in everything that he has said. This Bill is a classic example of how a Bill should come through this place. The way in which it has been built up across Parliament has been remarkable. It meets all the requirements for our security and for personal liberty, and we should be very proud of it.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I was going to speak later but I will speak now, as I am driven to do so by the comments of previous speakers.

The Bill is undoubtedly better than it was at the start. It could not help but be because of all the effort that people have put into making it better, but it is still a most appalling piece of legislation and I should like to read something to noble Lords:

“Today, an ordinary person can’t pick up the phone, email a friend or order a book without comprehensive records of their activities being created, archived, and analysed by people with the authority to put you in jail or worse. I know: I sat at that desk. I typed in the names. When we know we’re being watched, we impose restraints on our behaviour—even clearly innocent activities—just as surely as if we were ordered to do so. The mass surveillance systems of today, systems that pre-emptively automate the indiscriminate seizure of”,

private records, constitute a sort of surveillance time machine”,

“—a machine that simply cannot operate without violating our liberty on the broadest scale. And it permits governments to go back and scrutinise every decision you’ve ever made, every friend you’ve ever spoken to, and derive suspicion from an innocent life. Even a well-intentioned mistake can turn a life upside down. To preserve our free societies, we have to defend not just against distant enemies, but against dangerous policies at home. If we allow scarce resources to be squandered on surveillance programmes that violate the very rights they purport to defend, we haven’t protected our liberty at all: we have paid to lose it”.

That sums this Bill up. It was written by Edward Snowden, who, as he said, sat at that desk. It was written for Liberty.

[Lord West of Spithead]

My Lords, does the noble Baroness accept that Edward Snowden, by releasing millions of bits of classified material, has actually made all of us less safe than we were? It is a certain fact that he has done that. He is hardly someone to quote as a great and noble person.

[Baroness Jones of Moulsecoomb]

I think that we will find in the future that this legislation will return again and again to bite us, and many of us here will regret having passed it.

[Lord Murphy of Torfaen (Lab)]

My Lords, I disagree with the noble Baroness, Lady Jones. She played an important role in the course of this Bill in reminding your Lordships of the need to deal with the liberty of the citizen. But the greatest threat to the liberty of the citizen is the threat to life. This Bill, which is now in its final stage, is extremely important in ensuring that in future our citizens are protected against terrorism and the threats that face this country and beyond.

Of course, there were and are still issues that need to be taken very seriously with regard to the liberty of the subject. But in all the years that I have been in Parliament, I have not seen as much scrutiny of a Bill as this one. Not only did the Joint Committee, which I had the honour to chair, go through all the details of the Bill over a number of months, the other committees in Parliament also dealt with it, not least the Intelligence and Security Committee.

I commend the Government—not something that I usually do, but I will on this occasion—on accepting a great number of amendments to the Bill, which have improved it in the sense of ensuring that our liberties are safeguarded but that the basic thrust of the Bill remains the same. This has been a tremendous exercise in parliamentary scrutiny. As my noble friend Lord Rooker said, it is Parliament’s Bill as much as it is the Government’s.

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Rooker, for making his point at this stage. This is an important Bill. It will update the framework for the use of investigatory powers to obtain communications for the foreseeable future. But it not only provides powers, it provides safeguards that are clear and understandable: the double lock for the most intrusive powers; the creation of a new Investigatory Powers Commissioner; important safeguards on oversight in respect of legal professional privilege and in respect of journalistic material; a government response to David Anderson’s review in respect of bulk materials; and extensive consultation with the bodies affected by investigatory powers.

What we have today is the product in this House of cross-party collaboration. The parties opposite have taken an incredibly constructive and reasonable approach during the Bill’s passage and we are sending a significant number of changes back to the House of Commons. But those changes are evidence of the constructive engagement from all sides in this House. I particularly note the contributions of the noble Lords, Lord Rosser, Lord Rooker and Lord West, the noble Baroness, Lady Hayter, and from the Liberal Democrat Benches the noble Lords, Lord Paddick, Lord Carlile and Lord Lester, and the noble Baroness, Lady Hamwee. Indeed, the noble Lord, Lord Strasburger, also contributed to our debates on this matter. Of course, members of the ISC and Members on the Cross Benches have taken a great interest in the passage of this Bill. I cite the noble Lords, Lord Butler and Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood, and I am sure that I have missed many others. But this expression is intended for all Members of the House who have taken this matter forward and produced a Bill that we can send back to the other place with confidence, subject possibly to one amendment.

Amendment 2 agreed.

Amendments 3 and 4

Moved by

[Lord Keen of Elie]

3: Clause 41, page 34, line 41, leave out “to which the warrant relates” and insert “authorised or required by the warrant”

4: Clause 41, page 35, line 12, leave out “to which the warrant relates” and insert “authorised or required by the warrant”

Amendments 3 and 4 agreed.

Clause 49: Interception by OFCOM in connection with wireless telegraphy

Amendment 5 agreed.

Clause 56: Additional safeguards for items subject to legal privilege

Amendment 6

Moved by

[Lord Keen of Elie]

6: Clause 56, page 45, line 20, leave out “The Investigatory Powers Commissioner may” and insert “Unless the Investigatory Powers Commissioner considers that subsection (3B) applies to the item, the Commissioner must”

[Lord Keen of Elie]

My Lords, in moving this amendment I shall speak also to the other amendments in the group. This House has already discussed the important issue of legal privilege and whether the protections in the Bill for material that attracts privilege are adequate. At Report stage, the Government made a number of amendments significantly increasing the protections afforded to such material which were welcomed by this House.

In response to an amendment proposed by the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Hamwee, we also committed to consider whether there was more we could provide in the Bill to set out what the Investigatory Powers Commissioner must do when privileged material has been obtained and an agency wishes to retain it, and the considerations that he or she has to take into account when deciding whether material can be retained. The amendments tabled today speak to that issue, and in broad terms they do two things.

First, they provide that the Investigatory Powers Commissioner must order the destruction of privileged material or impose conditions on its use or retention unless the public interest in retaining the item outweighs the public interest in the confidentiality of items that are privileged, and retaining the item is necessary in the interests of national security or to prevent death or significant injury. Secondly, they provide for the commissioner to be able to impose conditions as to the “use or retention” of privileged items rather than its “disclosure”, as was previously the case. This makes it abundantly clear that decisions about what can be done with privileged material—whether it can be retained and who can be told about it—rest entirely with the commissioner, a serving or a former High Court judge who is, of course, well placed to make decisions which have at their heart public interest in the confidentiality of items subject to legal privilege.

The amendments relate to the interception provisions, both targeted and bulk, to the equipment interference provisions, both targeted and bulk, and to the provisions that relate to bulk personal datasets. The Bill therefore makes it clear that in every circumstance where legally privileged material is obtained and an agency wishes to retain it, whether the material is obtained intentionally or inadvertently, the commissioner must order its destruction or impose conditions on its use and retention unless its retention is necessary in the interests of national security or to prevent death or significant injury, and the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to privilege.

Amendments 11 and 24 are more minor and technical in nature. They ensure that Clauses 132 and 195, which relate to the retention of items obtained by targeted and bulk equipment interference, are consistent with the equivalent provisions in those parts of the Bill that deal with interception. I trust that noble Lords will agree that the Government have listened at every stage to the concerns of this House about the vitally important protections that must apply to material which attracts legal privilege, and I hope that they will further agree that the revised protections in the Bill reflect the sensitivity of legally privileged material while ensuring that sensitive but potentially vital intelligence remains available to the agencies in very limited circumstances. These final additions to the Bill make it clear that the criteria which apply to a warrant that authorises access to legally privileged material similarly apply to its retention.

I am obliged not only to the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Hamwee, in respect of these amendments, but also to my noble and learned friend Lord Mackay of Clashfern, who is not in his place today but who has contributed much to the discussions regarding these provisions. I beg to move.

16:15

[Lord Pannick (CB)]

My Lords, when the Bill came to this House, legal professional privilege—that is, the right of members of the public to seek and obtain confidential legal advice—was not adequately protected. The Minister and the Bill team have listened to the concerns expressed by the Bar Council, the Law Society and noble Lords on all sides of the House. The Minister has held a number of meetings; he has looked anxiously at these issues with the Bill team and has responded on Report and again today. I am very grateful to him.

[Baroness Hamwee (LD)]

My Lords, I moved amendments at the last stage. Having listened today to the plaudits given to Members of your Lordships’ House and the other place for the constructive way the Bill has been taken forward from when it was first a glimmer in the Government’s eye, I want to add plaudits for the efforts made outside the Palace of Westminster. The noble Lord, Lord Pannick, referred to the Bar Council—even if not quite everything it wanted has been agreed to—and to the Law Society, whose work on behalf not of lawyers but their clients has been invaluable in this process. It has been heartening to take part in this process, given the outcome, and to see how seriously and carefully the Government and members of the Bill team, for whom I know this has proved something of an intellectual challenge, have dealt with it. We are grateful to the Government.

Amendment 6 agreed.

Amendments 7 to 9

Moved by

[Lord Keen of Elie]

7: Clause 56, page 45, line 22, after “impose” insert “one or more”

8: Clause 56, page 45, line 22, leave out “disclosure or otherwise making available” and insert “use or retention”

9: Clause 56, page 45, line 23, at end insert—
“(3A) If the Investigatory Powers Commissioner considers that subsection (3B) applies to the item, the Commissioner may nevertheless impose such conditions under subsection (3)(b) as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of items subject to legal privilege.(3B) This subsection applies to an item subject to legal privilege if—(a) the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and(b) retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury.”

Amendments 7 to 9 agreed.

Clause 118: Renewal of warrants

Amendment 10

Moved by

[Lord Keen of Elie]

10: Clause 118, page 96, line 13, after “the” insert “renewed”

Amendment 10 agreed.

Clause 132: Additional safeguards for items subject to legal privilege

Amendments 11 to 15

Moved by

[Lord Keen of Elie]

11: Clause 132, page 109, line 19, leave out from “privilege” to end of line 21 and insert “which has been obtained under a targeted equipment interference warrant is retained, following its examination, for purposes other than the destruction of the item.”

12: Clause 132, page 109, line 25, leave out “The Investigatory Powers Commissioner may” and insert “Unless the Investigatory Powers Commissioner considers that subsection (3B) applies to the item, the Commissioner must”

13: Clause 132, page 109, line 27, after “impose” insert “one or more”

14: Clause 132, page 109, line 27, leave out “disclosure or otherwise making available” and insert “use or retention”

15: Clause 132, page 109, line 28, at end insert—
“(3A) If the Investigatory Powers Commissioner considers that subsection (3B) applies to the item, the Commissioner may nevertheless impose such conditions under subsection (3)(b) as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of items subject to legal privilege.(3B) This subsection applies to an item subject to legal privilege if—(a) the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and(b) retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury.”

Amendments 11 to 15 agreed.

Clause 154: Additional safeguards for items subject to legal privilege

Amendments 16 to 20

Moved by

[Lord Keen of Elie]

16: Clause 154, page 127, line 11, after “privilege” insert “which has been”

17: Clause 154, page 127, line 18, leave out “The Investigatory Powers Commissioner may” and insert “Unless the Investigatory Powers Commissioner considers that subsection (10B) applies to the item, the Commissioner must”

18: Clause 154, page 127, line 20, after “impose” insert “one or more”

19: Clause 154, page 127, line 20, leave out “disclosure or otherwise making available” and insert “use or retention”

20: Clause 154, page 127, line 21, at end insert—
“(10A) If the Investigatory Powers Commissioner considers that subsection (10B) applies to the item, the Commissioner may nevertheless impose such conditions under subsection (10)(b) as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of items subject to legal privilege.(10B) This subsection applies to an item subject to legal privilege if—(a) the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and(b) retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury.”

Amendments 16 to 20 agreed.

Clause 159: Power to issue bulk acquisition warrants

Amendment 21

Moved by

[Lord Keen of Elie]

21: Clause 159, page 130, line 27, leave out “such data” and insert “communications data obtained under the warrant”

Amendment 21 agreed.

Clause 169: Implementation of warrants

Amendment 22

Moved by

[Lord Keen of Elie]

22: Clause 169, page 136, line 39, leave out “obtained” and insert “as authorised or required”

Amendment 22 agreed.

Clause 170: Service of warrants

Amendment 23

Moved by

[Lord Keen of Elie]

23: Clause 170, page 137, line 3, leave out “169(3)” and insert “169(2)”

Amendment 23 agreed.

Clause 195: Additional safeguards for items subject to legal privilege

Amendments 24 to 28

Moved by

[Lord Keen of Elie]

24: Clause 195, page 157, line 42, leave out from “privilege” to first “the” in line 44 and insert “which has been obtained under a bulk equipment interference warrant is retained following its examination, for purposes other than the destruction of the item,”

25: Clause 195, page 157, line 49, leave out “The Investigatory Powers Commissioner may” and insert “Unless the Investigatory Powers Commissioner considers that subsection (10B) applies to the item, the Commissioner must”

26: Clause 195, page 158, line 2, after “impose” insert “one or more”

27: Clause 195, page 158, line 2, leave out “disclosure or otherwise making available” and insert “use or retention”

28: Clause 195, page 158, line 3, at end insert—
“(10A) If the Investigatory Powers Commissioner considers that subsection (10B) applies to the item, the Commissioner may nevertheless impose such conditions under subsection (10)(b) as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of items subject to legal privilege.(10B) This subsection applies to an item subject to legal privilege if—(a) the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and(b) retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury.”

Amendments 24 to 28 agreed.

Clause 224: Additional safeguards for items subject to legal privilege: retention following examination

Amendments 29 to 32

Moved by

[Lord Keen of Elie]

29: Clause 224, page 177, line 41, leave out “The Investigatory Powers Commissioner may” and insert “Unless the Investigatory Powers Commissioner considers that subsection (2B) applies to the item, the Commissioner must”

30: Clause 224, page 177, line 43, after “impose” insert “one or more”

31: Clause 224, page 177, line 43, leave out “disclosure or otherwise making available” and insert “use or retention”

32: Clause 224, page 177, line 44, at end insert—
“(2A) If the Investigatory Powers Commissioner considers that subsection (2B) applies to the item, the Commissioner may nevertheless impose such conditions under subsection (2)(b) as the Commissioner considers necessary for the purpose of protecting the public interest in the confidentiality of items subject to legal privilege.(2B) This subsection applies to an item subject to legal privilege if—(a) the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to legal privilege, and(b) retaining the item is necessary in the interests of national security or for the purpose of preventing death or significant injury.”

Amendments 29 to 32 agreed.

Clause 273: Commencement, extent and short title

Amendment 33

Moved by

[Lord Keen of Elie]

33: Clause 273, page 226, line 1, leave out “and (3)” and insert “to (4)”

Amendment 33 agreed.

Schedule 3: Exceptions to section 57

Amendment 34

Moved by

[Lord Keen of Elie]

34: Schedule 3, page 246, line 33, at end insert—
“( ) In sub-paragraph (3) “intercepted material” means—(a) any content of an intercepted communication (within the meaning of section 57), or(b) any secondary data obtained from a communication.”

Amendment 34 agreed.

Schedule 10: Minor and consequential provision

Amendments 35 and 36

Moved by

[Lord Keen of Elie]

35: Schedule 10, page 273, line 28, leave out sub-paragraph (3) and insert—
“(3) In paragraph (a) of the definition of “communication” omit “(except in the definition of “postal service” in section 2(1))”.”

36: Schedule 10, page 283, line 19, leave out “, or Chapter 3 of Part 6,”

Amendments 35 and 36 agreed.

Motion

Moved by

[Lord Keen of Elie]

That the Bill do now pass.

[Lord Keen of Elie]

My Lords, I beg to move.

[Lord Rosser]

Let me take this opportunity to say that, while very differing views have been expressed in this House about the Bill, I believe it is accepted that it has benefited significantly from the attention it has been given through pre-legislative scrutiny and investigation, including by a Joint Committee, and during its passage through both Houses. We have now concluded our consideration of the Bill, and I want to take this opportunity to thank Ministers and the Bill team for the thought they have given to the issues that have been raised, including those left outstanding following the Bill’s passage through the Commons. Finally, I want to thank our own team, particularly Nicola Jayawickreme, for all the help and support they have given me and my noble friend Lady Hayter of Kentish Town.

Bill passed and returned to the Commons with amendments.