Baroness Hamwee
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Investigatory Powers Bill
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, on behalf of my noble friend Lord Paddick and myself, as well as moving Amendment 39, I shall also speak to our other amendments in the group: Amendments 40, 41, 42, 43, 61, 97, 98, 99, 165A, 167 and 168A. We will not—at any rate today—be opposing the question that Clause 23 stand part of the Bill. I hope that the Minister got that message. We seem to have gone backwards and forwards on that.
I turn to the approval or disapproval of warrants by the judicial commissioner. My first amendment deals with the term “review”. This is related to, but not the same as, the judicial review principles. In Clause 39, I struggle to see that “review” is the correct term. In itself, “review” suggests consideration leading to a critique, but if you read a little further you find the terms “approval” and “refusal to approve” almost throughout. Maybe “determine”, which is the term we use in our amendment, is not the right term either and other terminology should be substituted, but we think it should be more than “review”, which seems a rather low-level approach for what is actually provided by the Bill.
We added Amendment 165A to the group. I am not suggesting that noble Lords should keep turning to the different clauses; the same points apply throughout, although no doubt there are other points that we have missed. Amendment 165A refers to Clause 100, where there is a point about the consistency of using “determine”.
Under Amendments 40, 42 and 168A, the judicial commissioner would be required to consider the reasons for the decision given by the decision-maker. We argue that they should not be bound by the decision-maker’s assessment of the facts.
There has been much discussion about judicial review principles. I accept that the approach to judicial review has evolved over the years. I know some of our resident lawyers are satisfied with the use of the term in the Bill, but others are not. It cannot be appropriate to include in legislation a term that has caused so much debate and given rise to such different advice as to what the term actually means. If what is meant is only process then we should say so, although I do not think Ministers are arguing that in relation to whether a decision-maker has addressed his mind to the issue. If it is intended—as it seems to me, reading the whole context for this—that the reasons for the decision are examined, we should say so; we should not leave room for doubt.
On Amendments 39 and 42, which are about interception warrants, similar points apply. On Amendments 97 to 99, which relate to the clauses that we shall come on to which deal with the approval of national security notices and technical capability notices, I accept that there may be different considerations there but, given that one of those considerations is the decision is that of the Secretary of State, again our amendments about determination, reasons and so on would apply. I accept that what we have said is probably not as tidy as it might be. On Amendment 167, which relates to equipment interference, we again suggest “determining” rather than “reviewing” the conclusions.
The Law Society and the Bar Council argued in their evidence to the pre-legislative Joint Committee that the references to judicial review should be removed from the legislation for clarity. I was quite pleased when I came across that only this morning after we had tabled the amendment; it is quite nice to feel that we are not completely out on a limb. I understand that the director of national security in the Office for Security and Counter-Terrorism said in relation to the judicial authorisation of warrants:
“The specifics here are that two things will be critical: first, that they decide in the first place that the action is rational and lawful; and, secondly, that it is necessary and proportionate. Those are exactly the same tests as the ones the Secretary of State will be looking at”.
That leads me again to the view that removing judicial review would help avoid confusion.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I begin with some of the observations made in your Lordships’ House regarding judicial oversight. On the observations of the noble Lord, Lord Strasburger, I have a double lock on my front door. The two locks work differently but they are equally effective. That really is the point of the double lock in the context of this legislation: the locks do indeed work differently but they are equally effective at the end of the day. I would adopt the observation of the noble and learned Lord, Lord Brown of Eaton-under-Heywood, that judicial oversight as it has developed provides us with a flexible standard of oversight, which in many senses is wide-ranging, as has been observed. But, of course, it is judicial oversight, and that is what we have to emphasise.
Turning to a point raised by the noble Baroness, Lady Hamwee, on working days a week, we consider that the present provision is appropriate. As to the calculation of the working day, the third working day will be calculated from the day after the warrant is issued. For example, if a warrant is issued on a Monday, it must be authorised by the commissioner by the close of Thursday. So it is the date of issue plus three working days.
Amendments 39 to 42, 165A, 167 and 168A would significantly change the so-called double-lock safeguard, such that the judicial commissioner would be taking their own decision rather than reviewing the Secretary of State’s conclusions as to whether the warrant is necessary and proportionate. The Committee will appreciate that the issue of authorisation has been a central feature in the debate on the Bill. Perhaps I might just give a brief potted history of its development.
The three reviews that shaped the draft Bill—by David Anderson QC, the Intelligence and Security Committee of Parliament and the Royal United Services Institute surveillance panel—made different recommendations in respect of authorisation. One called for full Secretary of State authorisation and the other two called for a hybrid judicial/executive model. It is noteworthy that none of them called for full judicial authorisation for all warrants. The Joint Committee that undertook pre-legislative scrutiny of the draft Bill supported the double-lock approach set out in the Bill, including the use of the well-established principles of judicial review. At Second Reading in the other place, there was very strong cross-party support for a government amendment that preserved the double lock and the role of the judicial commissioner, while linking the judicial commissioner’s scrutiny to the new privacy clause, to put beyond doubt, if it needed to be, that the judicial commissioner would need to apply a sufficient degree of care to ensure that he or she had complied with duties imposed by the new protection of privacy clause in Part 1 of the Bill. So we are on well-trodden ground, and it is clear that there is strong support—including from senior members of the judiciary—for the approach set out in the Bill.
These amendments would confuse the distinct roles of the Executive and the judiciary and undermine democratic accountability—a point touched on by the noble Lord, Lord Rooker. It is surely right that a Secretary of State, who is accountable to Parliament and ultimately to the public, should be making the decision as to whether a warrant for the most intrusive powers is necessary and proportionate. Equally, it is entirely appropriate that a judicial commissioner should be carefully reviewing that decision. While the commissioner’s role is to review the original decision, your Lordships should be clear that this is a robust safeguard. Also, the judicial commissioners will have held or will be holding high judicial office and will be familiar with the principles of judicial review.
As amended in the other place, Clause 23 makes it clear that the commissioners’ review must involve careful consideration and ultimately if the Investigatory Powers Commissioner does not approve the decision to issue the warrant, it cannot come into force. The amendments I have referred to would also require the judicial commissioner to consider the reasons given for the decision to issue the warrant. The amendment is based on a misunderstanding of how warrants operate. The Secretary of State will receive a detailed application setting out the necessity and proportionality considerations. If they agree, they will issue the warrant. They do not have to give reasons for the decision beyond confirming that they personally consider that the warrant is necessary and proportionate. The judicial commissioner will review the decision of the Secretary of State based on the evidence provided to the Secretary of State in the application. If the commissioner thinks that the evidence in the application is not a sufficient basis for the decision that has been made, the commissioner will refuse to approve the decision. We would submit that it is in these circumstances that the double-lock mechanism is appropriate in this context, and accordingly I invite the noble Baroness to withdraw the amendment.
On Amendments 16 and 19, I have already touched on the reference to removing the term “working days”. Our position is that that is an appropriate way forward with these provisions, and I again invite the noble Baroness not to press these amendments.
Amendments 97 to 99 would significantly alter the double-lock safeguard for notices, such that the judicial commissioner would be taking their own decision rather than reviewing the conclusions of the Secretary of State as to whether the notice under Part 9 of the Bill is necessary and proportionate. The amendments would accordingly also remove the requirement for the judicial commissioner to apply the same principles as would be applied by a court in an application for judicial review. As discussed during scrutiny by this House of similar clauses in Part 2 of the Bill, these amendments would confuse the distinct roles of the Executive and the judiciary, as I mentioned earlier. It is right that a Secretary of State, who is accountable to Parliament and ultimately the public, should make the decision whether it is necessary and proportionate to impose obligations on operators through the giving of a notice. Equally, it is entirely appropriate that a judicial commissioner should be carefully reviewing that decision. As I stated previously, the commissioner’s role is to review the original decision, and your Lordships should be clear that this is a robust safeguard.
One of the amendments would also require the judicial commissioner to consider the reasons given for the decision to give a notice, and again as I indicated before, this amendment appears to be based on a misunderstanding of the process of giving a notice because the reasons are not provided. In other words, under the Bill there is no need to give written reasons over and above those set out in the application itself. Again, in that context I would invite the noble Baroness not to press the amendments.
Baroness Hamwee
My Lords, I am grateful to all those who have taken part in the debate either to support or oppose me, and of course one is used to one’s friends being behind one sometimes. Perhaps I should make a disclaimer. Many years ago the noble Lord, Lord Rooker, when he was at the Dispatch Box was being a bit disparaging—that might be the term—about lawyers and, when I protested, said to me, “Not you. You’re not a lawyer”. Solicitors are excluded for this purpose.
I turn first to “working day”. The noble and learned Lord has said in effect that he disagrees with me, but I am not sure on what basis. Clause 24, where the term first comes up, deals with urgent cases, so it seems counterintuitive that one might have an extended period for dealing with an urgent case rather than one that is as tightly drawn as possible. Can the noble and learned Lord offer the Committee more as to the Government’s reasoning on this?
Lord Keen of Elie
Originally, the period was five working days and, after due consideration, it has been reduced to three. That is considered to be an appropriate period in the context of these provisions. But the Government have reviewed the measure and, as I said, that amendment has already been made.
Baroness Hamwee
Turning to judicial review, determination, refusal to approve and so on, the debate has made my point that we need greater clarity than is provided in these provisions. I agree with my noble friend Lord Carlile—the Committee may be relieved to hear that there is some agreement—at least to the extent that we should know what we want, and we do not yet have clarity in the Bill. A number of noble Lords are clear about what they want, but the Bill is not clear as to what the job is. Clause 23(4), the same clause that provides for a review, states:
“Where a Judicial Commissioner … refuses to approve”.
That suggests something more than we have been hearing about and does not suggest a double lock. I heard what the noble Lord, Lord Murphy, said, and we now have references in Clause 23(1) to necessity and proportionality. However, in assessing those matters, the judicial commissioner must apply the principles of judicial review. I may not be a lawyer in the terms of the noble Lord, Lord Rooker, but I find that this has a degree of circularity and confusion.
In his evidence to the Public Bill Committee, the noble and learned Lord, Lord Judge, said:
“I myself do not think that judicial review is a sufficient indication of those matters”.—[Official Report, Commons Public Bill Committee, 24/3/16; col. 68.]
Although I will not seek to pursue the matter today, we may well wish to return to it.
Lord Keen of Elie
I should correct a reference I made. I referred in the context of the working days to Amendments 16 and 19, which must have puzzled the noble Baroness. That was my internal numbering and I was, of course, referring to Amendments 43 and 61. I apologise for that.
Baroness Hamwee
My Lords, I was so confused that I did not even bother to check the references. I beg leave to withdraw the amendment.
Lord Phillips of Worth Matravers
My Lords, the example given by the noble and learned Lord, Lord Mackay, demonstrates why Amendment 48 is too narrow. If a villain were to seek advice on his will it would not be a criminal purpose but it might none the less be justifiable to listen to the conversation in the hope of finding out where he was.
Baroness Hamwee
My Lords, from our Front Bench I support these amendments, although I take the point about the innocent conduit—if I can put it that way—which becomes more intriguing as one thinks about it. The noble and learned Lord, Lord Mackay of Clashfern, said that if the security services could use another means they would do so. I want to bring into the mix a point that I made when we debated Clause 2, which is that that requirement is not absolute: they would have to have regard to other means and whether those could reasonably achieve the end. This exercised me in a conversation with the Minister and continues to do so, so it is right to bring it into the mix.
Lord Beecham (Lab)
My Lords, a range of subjects appears to be covered both by the amendments and by today’s debate. I think we are all looking forward to the noble and learned Lord’s response to the issues of principle, which it is clear are very much in your Lordships’ minds. I draw particular attention to the report of the Joint Committee on Human Rights, which went so far as to say that,
“we do not see the need for a power to target lawyer-client communications”,
and that the amendment it sought would remove that provision from the Bill because it was deemed unnecessary in view of the iniquity exception. It would be interesting to hear the Minister’s reaction to that, but much of what we have heard today has been about the detailed workings of the Bill.
One of the main substantive issues is the position of the judicial commissioner in whatever processes ultimately result—that seems to me the critical aspect on which we would welcome some guidance from the Minister on the Government’s intentions. If it is still deemed necessary in some form or other to deal with the problem, as the Government see it, of legal privilege, there must surely be at least the safeguard that the decision should be made by a judicial commissioner rather than by a civil servant or Minister of the Crown. That measure of independence and of judicial experience seems fundamental to any acceptable proposal to move along the lines that the Government seek to pursue. Again, it would be helpful if the Minister were in a position today to clarify whether, whatever other details might be subject to debate, that important principle is one that the Government accept.
Lord Pannick
I take the noble and learned Lord’s point that “theoretical” is perhaps the wrong word to use and that “speculative” may be more appropriate. I wonder whether he could answer the question I posed earlier. Given that these powers have been available since 2000, can he tell the Committee whether the authorities have ever used them or whether we are talking in abstract terms about something that may have been required in the past? If it has not been used in the past 16 years, it is speculative.
Baroness Hamwee
My Lords, before the Minister responds to that, it seems that he would be in a better position to answer the question than the noble Lord, Lord Pannick, because I cannot see how he could give an example without someone having breached client confidentiality along the way.
Lord Keen of Elie
Let me say this: the matter is not speculative and it is not theoretical, as the noble Lord concedes. I am not aware of any example of this having happened in the past 16 years, but that does not render it speculative. The point is that the example that can be given—the example I gave—is one that could arise in the future. The question then is whether the agencies should have a means to secure that vital intelligence or face a complete brick wall. In this context, we would simply say this. In response to the point made by the noble Lord, Lord Pannick, over the past 16 years, there is no evidence of damage to the rule of law and no evidence of any intrusion on the ability of lawyers to say that their legal advice is confidential because it is appreciated that this is a wholly exceptional power.
Baroness Hamwee
“( ) Any modification to a warrant must be authorised by a Judicial Commissioner.”
Baroness Hamwee
My Lords, in this group, Amendments 53, 54, 55, 56, 57, 60 and 62, and the Clause 33 stand part debate, are in my name and that of my noble friend Lord Paddick; the Government have Amendment 59, which looks to be an innocent drafting amendment—I hope it is as innocent as my reading of it.
These amendments take us to the modification of warrants. We believe that modification is such a serious action that the judicial commissioner should be involved, which the first amendment deals with; “modification” perhaps gives the wrong impression as to what is sought.
Baroness Hamwee
My Lords, I have no problem with the government amendment, if one accepts the whole premise of the thing.
On the timescale, I always think it is much easier to ensure there is real, rigorous observation of a timescale if a specific one is spelled out, rather than,
“as soon as reasonably practicable”,
because one can come up with all sorts of reasons why something is not practicable. I note that the noble and learned Lord again mentioned bank holidays; he knows our view about their application.
From listening to his explanation, I wonder whether some of the difficulties arise from what “description” means in Clause 32(2)(a). That is perhaps also a factor in Clause 32(2)(b). I must say I am not clear whether one is dealing with a description of an address when one asks whether it is “No. 25” or “No. 125” or, taking that a bit further, when it should have been not “Acacia Avenue” but “Hawthorn Avenue”. Will the Minister—if not at this stage, perhaps subsequently—explain what “description” means, with examples? It seems to me to be a term capable of different interpretations by different people.
I do not think there will be an answer—even though an emissary has been sent—so I think I had better withdraw my amendment. I beg leave to withdraw the amendment.
Baroness Hamwee
My noble friend Lord Paddick and I want to explore a little the provisions on interception in certain institutions, as these clauses are headed. It was suggested in the Commons Public Bill Committee that questioning them was tilting at windmills. I think some justification should be put on the record for these provisions, and certainly for those relating to psychiatric hospitals and immigration detention centres. I do not want to appear to suggest that there is no duty of care or a lesser duty of care in prisons, but I can see greater arguments for a more intrusive regime in prisons.
Clause 48 applies to high-security psychiatric services. Under Section 4 of the 2006 Act, which is referred to in the clause, these are for persons,
“liable to be detained under the Mental Health Act 1983”,
and requiring,
“treatment under conditions of high security on account of their dangerous, violent or criminal propensities”.
I stress the “or” and that it is “propensities”, not necessarily actions. In many cases this may be in the interests of the patient’s health or safety and not, as I understand it, simply a response to criminal activity where there has been a prosecution.
Clause 49 is about immigration detention facilities. Although we have done so, I will not spend time now on the fact that prisons are still used for immigration detention. We have had considerable debate about immigration detention recently in the context of what is now the Immigration Act, and it is accepted, I hope, that we are talking about administrative detention, not imprisonment with a view to removal, or even an acknowledgement that detainees should be removed. We discussed the large number of detainees who move into the community. There is a lot to be said—a lot was said and probably more could have been said—about the conditions in immigration detention centres. Exposure to the risk of having communications intercepted needs justification on the record, not least because of the febrile atmosphere at the moment around immigration, with immigrants too often cast as bad people. That is why we are concerned about the two clauses standing part.
I am very grateful to the Public Bill Office, which spent a lot of time helping me draft Amendments 71 and 72, which relate to tracing what are “relevant rules” for the purpose of Clause 49. Instead of trying to take the Committee through the rather complicated drafting of Amendment 72, I will just make the overall point, which is that there should be transparency: it should be clear in the regulations, which we are saying should be affirmative, that the rules apply for the purposes of interception provisions.
That, in a nutshell, is what I am driving at in that amendment. I do not wish to insult the Public Bill Office, which as I say was splendid, and the buck stops with me if this is not the way to do it, but I would like to be assured that the relevant rules have been made—I think we are talking about existing rules—for the interception provisions. As I say, this is a point about transparency, or clarity, and one it is probably quite difficult to discuss across the Chamber, but I would like to be assured that some way will be found to achieve that end. To go back to the overall point, that is why we are objecting to the clauses—for the purpose of this debate at any rate.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, Clause 48 maintains the position set out in RIPA that interception is lawful in certain circumstances in psychiatric hospitals. The clause sets out that interception is lawful if it takes place in any hospital premises where high-security psychiatric services are provided and is conducted in pursuance of, and in accordance with, any relevant direction given to the body providing those services at those premises.
While the clause provides that the interception is lawful, it is the relevant direction under the National Health Service Act 2006, the National Health Service (Wales) Act 2006, the National Health Service (Scotland) Act 1978, or the Mental Health (Care and Treatment) (Scotland) Act 2003, that sets out how and when the interception may be conducted—that is not a function of this Bill.
Clause 49 provides that certain interception carried out in relation to immigration detention facilities is lawful. The Immigration and Asylum Act 1999 contains powers for the Secretary of State to make rules for the management of immigration detention facilities, and Clause 49 provides that interception carried out in accordance with those rules will be lawful. At present, rules have been made only in respect of immigration removal centres—the Detention Centre Rules 2001. The interception of communications in relation to immigration removal centres, in line with the statutory rules, is purely for the purposes of maintaining the security of those centres or the safety of other persons, including detainees. It is right that officers should be able, for example, to intercept attempts to send controlled drugs or other contraband material into particularly sensitive and secure environments.
Contrary to speculative claims, this power can never be used to determine the outcome of any person’s asylum claim. Again, the precise circumstances in which interception may take place in immigration detention facilities are not a matter for the Bill. To be clear, the purpose of this clause is not to determine rules relating to the management of immigration detention facilities. The purpose of the clause is simply to make clear that conduct authorised and regulated under existing legislation—specifically, the Immigration and Asylum Act 1999—would be lawful.
Rules made under the 1999 Act about the regulation and management of detention facilities are subject to negative resolution, as specified in the Act and as agreed by Parliament. Such rules in relation to interception would be based on the clearly legitimate purposes already contained in the Detention Centre Rules 2001. The interception of communications in relation to immigration removal centres, in line with the statutory rules, is purely for the purposes of maintaining the security of those centres or the safety of other persons, including detainees, as I explained.
I hope the noble Baroness will accept that the amendments are unnecessary and that the clauses should stand part of the Bill.
Baroness Hamwee
My Lords, I have found it difficult throughout the Bill to accept that something is necessary just because it is in RIPA or is currently in effect. I am afraid I gave up chasing through the references in Clause 48—I thought my iPad was going to give out on me if I asked www.legislation.gov.uk any more questions on Sunday morning. I should have pursued this, and for that I apologise to the Committee. I think I am reassured by the explanations I have. I will go away and read the record, but I am grateful to the noble Earl.
Baroness Hamwee
“Evidence
(1) The Secretary of State may make regulations enabling material obtained by interception by lawful authority to be put forward as evidence in court proceedings.(2) Regulations may not be made under subsection (1) unless the Secretary of State has consulted such persons as the Secretary of State considers appropriate.(3) Consultation must, in particular, address mechanisms relating to the disclosure of information on proceedings and their general conduct.”
Baroness Hamwee
In moving Amendment 81, I shall also speak to Amendment 239. I am not proposing, now, a facile change in the rules of evidence—but given the subject matter of the Bill, it might be a little odd not to explore the issue of intercept as evidence a little. Amendment 81 contains an enabling clause; enabling clauses go a bit against the grain, but for this purpose I think one is appropriate. It would require consultation and the affirmative resolution—but this is a probing amendment.
I know about the concerns that intercept as evidence would be massively expensive, because of the entirely proper rules of disclosure of evidence to the defence and the prosecution. Intercepted phone calls would not just be monitored for intelligence, with rough notes made and conversations only partially transcribed; this would mean a huge amount of transcription, and maybe translation as well, plus storage and indexation. Disclosure could, I accept, have operational implications, through disclosing techniques and the capacity of the agencies.
On the other hand, intercept evidence could significantly influence the outcome of a trial, but at the moment is simply unused. Lord Lloyd of Berwick said:
“We know who the terrorists are, but we exclude the only evidence which has any chance of getting them convicted”. —[Offcial Report, 19/6/00; cols 109-10,]
So we spend a lot of resources on spying on those implicated in organised crime and terrorism, but we cannot prosecute them or prevent further crime. Other common law countries use such evidence. I am aware that their legal systems are said to be “less demanding”, but does that not suggest that we should not abandon the idea?
The right to a fair trial raises the issue of all evidence being available to both prosecution and defence. The prosecution has the advantage of being aware of evidence but not using it, and that puts the defence at a disadvantage. Further, I understand that a ban applies only to interceptions in the UK. Recordings and transcripts of intercepted calls made in other countries are used, for instance in prosecutions for drug trafficking. Nor is there a bar on introducing evidence of phone calls made from prisons. I believe that the Ian Huntley Soham case featured such evidence. One can also use a recording from a hidden bug as evidence, but one cannot use interception as evidence.
It is argued that our system of public interest immunity could be applied to protect the details of investigative techniques—the subject of the concern that I raised a moment ago. The Privy Council’s review on that issue, which reported in 2008, concluded that it would be possible to provide for use as evidence by developing a “robust legal model” with public interest immunity as the basis, which would be human rights compliant. I appreciate that that review was the seventh report to Ministers in 13 years, so this matter has not gone unexamined.
However, we are now in a position whereby our criminal justice system cannot accommodate what will often be the best evidence in a case, so cases that should be prosecuted may not be. Given advances in technology—and those no doubt to come—it must be right to keep the issue on the agenda, which is what the amendment seeks to do. I beg to move.
Lord Strasburger
My Lords, I have a question for the Government. Am I correct in believing that evidence derived from equipment interference is permitted to be used in court? If so, could not equipment interference lead to an equally large and costly process of evidence-gathering? Why is there a difference between the two sources of evidence?
Lord Keen of Elie
Because it has been established as a matter of evidential law over many years that it can be admitted. Therefore, adequate provision is in place for its admission as evidence.
Baroness Hamwee
I am not sure that my noble friend will feel that he has had further enlightenment, but I have to say that I agree with pretty much everything the noble and learned Lord said. The one thing he said which I could not really have known is that circumstances have not changed—I think that was his term. The amendment is by no means ideal, but we have taken only nine minutes on it, which in the context of the Bill is but a blink of an eye, and it was right to put on record our concern that the issue should not be lost sight of. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, my noble friend Lord Paddick and I have Amendments 86 to 88, 244 and 245 in this group, which takes us to the provision for payment towards compliance costs. Under Clause 222(1):
“The Secretary of State must ensure that arrangements are in force for securing that telecommunications operators and postal operators receive an appropriate contribution in respect of such of their relevant costs as the Secretary of State considers appropriate”.
As I read that, I wonder why it needs to be “an appropriate contribution” and such as the Secretary of State “considers appropriate” of their relevant costs. That is belt, braces and some other form of security.
Amendments 86 to 88 taken together provide for cover for all the operators’ costs, but those costs should be assessed objectively, and I feel quite strongly that the arrangements should be in place before the operational parts of the Bill are in force. The audit provision—the subject of the amendment of the noble Lord, Lord Rosser, and the noble Baroness, Lady Hayter—would remain, as is right.
I feel strongly about this because however much good will there is on both sides, if you do not get an agreement in place before you get on with the next stage of the operation, there is always the danger that you will not satisfy the parties. It is important not to leave the matter open.
There has been a lot of discussion of the quantum. The Minister in the Public Bill Committee said that 100% of the compliance cost will be met by the Government. He clarified that the estimated costing of £174 million—which illustrates why it is important to get the Bill right—
“is not a cap, but an estimate”.—[Official Report, Commons, Investigatory Powers Bill Committee, 3/5/16; col. 632.]
The Science and Technology Committee, reporting on the Bill, recommended:
“The Government should reconsider its reluctance for including in the Bill an explicit commitment that Government will pay the full costs incurred by compliance”.
It is a short point regarding an awful lot of money and potential exposure for the operators, so we are concerned to get the matter pinned down. I beg to move.
Baroness Hayter of Kentish Town
My Lords, as was mentioned, Amendment 89 stands in my name and that of my noble friend Lord Rosser. Clause 222(6) contains what is to me the unusual phrase:
“Different levels of contribution may apply for different cases or descriptions of case but the appropriate contribution must never be nil”.
“Must never be nil” is a slightly strange phrase, especially given that someone who, until a few hours ago, was the Home Secretary but is now the Prime Minister said on Second Reading:
“I reiterate … that … 100% of the compliance costs will be met by the Government”.
She was asked to provide a long-term commitment for that and said,
“we are clear about that in the Bill … it is not possible for one Government to bind the hands of any future Government in such areas, but we have been clear about that issue”.—[Official Report, Commons, 15/3/16; col. 821.]
However, being clear about the contribution which must never be nil is not what I call clarity.
Amendment 89 simply takes the then Home Secretary’s words as used in Parliament that the Government would meet 100% of the compliance costs, with full cost recovery for communication service providers, which, after all, have to implement the legislation. It is important to write it into the Bill to ensure that the financial impact of the legislation is transparent, not hidden, and to give forward confidence to those companies, whose activity in this country is already a little wobbly thanks to Brexit, that they will not at some point be hit by unexpected and unavoidable costs.
As was mentioned, Amendment 89 also allows for a proper audit to ensure that operators do not provide unduly high costings. Obviously, they can make no profit from these procedures because they are a departure from normal business, but they need those costs to be met. Cost recovery could be significant, but the Bill does not seem to put any limit on it at present. We will depend on the good will of these companies to make the Bill effective. We should not charge them for their willingness as well.
Earl Howe
My Lords, this amendment seeks to ensure that communications service providers are fully reimbursed for their costs in connection with complying with obligations under this Bill, and that arrangements for doing so are in place before the provisions in the Bill come into force. It is, of course, important to recognise that service providers must not be unduly disadvantaged financially for complying with obligations placed upon them. Indeed, the Government have a long history of working with service providers on these matters. We have been absolutely clear that we are committed to cost recovery. I want to reaffirm to the Committee a point that my right honourable friend the Security Minister made very clear in the other place: this Government will reimburse 100% of reasonable costs incurred by communications service providers in relation to the acquisition and retention of communications data. This includes both capital and operational costs, including the costs associated with the retention of internet connection records. I hope that that assurance is helpful.
The key question that this Committee needs to consider is whether it is appropriate for the Government of today to tie the hands of future Governments on this issue. I wonder whether, on reflection, the noble Baroness thinks it right to press for that. That does not mean that we take our commitment lightly or that future Governments will necessarily change course. Indeed, I suggest that it is unlikely ever to be the case; for example, the current policy has not changed since the passage of the Regulation of Investigatory Powers Act 2000 and so has survived Governments of three different colours or combinations of colours.
This Government have been absolutely clear that we practised cost recovery and we have been consistent in our policy for a very long time. Indeed, this Bill adds additional safeguards requiring a data retention notice to set out the level of contribution that applies. This ensures that the provider must be consulted on any changes to the cost model and also means that the provider would be able to seek a review of any variation to the notice which affected the level of contribution. The Government already have arrangements in place for ensuring that providers receive appropriate contribution for their relevant costs without delay, so the amendment that seeks to ensure that they are in place before the provisions come into force is, I suggest, unnecessary. Accordingly, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I wrote down a number of phrases, including “not unduly disadvantaged”. In the light of the absolute, clear commitment to full cost recovery, I wonder whether “unduly” is the right term. I also wrote down “100% of reasonable costs” that ought to be covered by the audit provision. The noble Earl has just referred to an appropriate contribution for relevant costs. I am sure he will understand where I am going with these terms.
The noble Earl asks whether it is appropriate to tie the hands of future Governments. I would say that in this instance it is appropriate, because a future Government can bring forward future legislation and that would be the way to do it—not to seek to resile from what everyone regards as a very important commitment given, but where there is a detraction from it in the terminology of Clause 222. I do not know whether the noble Earl is in a position to make a comment about “unduly” now. I suspect he is not. It is a rather unfair question from me.
Earl Howe
We are clear that it is important to ensure that communications service providers are neither advantaged nor disadvantaged by obligations imposed under the Bill. The Government will maintain, therefore, their long-standing policy of making a reasonable contribution to costs, but it is unthinkable that the Government would seek to place any unreasonable financial burdens on a company simply for complying with a warrant. So we are talking about reasonable costs. That is surely right. It is not appropriate for the taxpayer to subsidise unreasonable costs, but as I have said, we have made a commitment to reimburse 100% of reasonable costs incurred by the communications service providers, and that includes both capital and operational costs.
Baroness Hamwee
It occurs to me that a happier term might have been “proper costs”. I am certainly not arguing that the CSPs should make a profit out of this, nor that they should feel that they have got a credit card which they can max out just because they are not particularly bothered. That is not the thrust of the amendments. I have made our point as firmly as I can. The noble Earl will understand from what I am saying that I remain somewhat concerned, but this may be a matter for later. I beg leave to withdraw the amendment.