Investigatory Powers Bill

Lord Murphy of Torfaen Excerpts

Monday 12th September 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, Amendment 234A takes us to Clause 232, which provides for a review of the operation of the Act. A lot of concern has been expressed during the course of the Bill about the speed of change of technology. Most recently, David Anderson, in his report on the operation of bulk powers, said, encapsulating this very neatly,

“nothing in this field stays still forever, or even for long”.

He also quoted Matt Tait, who told the review that,

“for the overwhelming majority of the time that the IP Bill will be law, it will be interpreted in secret by HMG lawyers, when seeking to authorise as-yet unknown operations in support of not-yet decided policy objectives, needing to relate the provisions of the IP Bill to technologies that do not exist yet, where technological norms may be markedly different to how they are today”.

In most fields, five years would seem a reasonable time, even though quite ordinary products such as washing machines become obsolete—they are even made for obsolescence—within a shorter period than that. However, in this field five years is almost a generation. Devices manufactured five years ago are apparently now obsolete, as I have just discovered with the desktop PC which I have been using, and are not supported by the manufacturers. Enormous advances are made every year, and as all noble Lords who have spoken about this have acknowledged, it is essential that the Government and the authorities that will be acting under the powers that will be given by the Act keep abreast of those changes. I appreciate that a great many attempts have been made to future-proof the Bill, but this is not an easy project, and we may find the day after tomorrow that something new comes along to undermine that future-proofing.

We believe that five years and six months is too far into the future before the legislation is formally reviewed. Of course, the Secretary of State can arrange for a review without the formal provision in the Bill, but this is the requirement and it should itself be fit for purpose. We are not wedded to two and a half years, but five and half is too long. Two and a half would enable a report well before the end of this Parliament, assuming that the next election is in 2020. Although we are not wedded to two and a half years, we would be interested to hear the Government’s justification for the period of five and a half years and, I hope, an acknowledgment that a shorter period would be appropriate in this instance. I beg to move.

[Lord Murphy of Torfaen (Lab)]

The purpose of the Liberal Democrats’ amendment seems to be that there is a speedier review of the legislation than was agreed in the passage of the Bill in the other place and was actually in the Bill. During the proceedings of the Joint Committee, a number of witnesses, including the Information Commissioner, argued for a sunset clause to be put into the Bill. The committee considered that; it did not agree, but at the end of the day believed that there should be,

“some form of review after five years”,

and that it should be “detailed post-legislative scrutiny”. The proposal that the Joint Committee came up with, to which I believe the Government have agreed, is that a Joint Committee of both Houses should be established within six months of the end of the fifth year after the Bill is enacted.

The difficulty with the amendment is that it refers specifically to the Secretary of State reviewing the Bill, whereas the Joint Committee was arguing that both Houses of Parliament should review it. The argument that technological change can be swifter than was thought by those of us who believe that five years was the answer is what lies behind the amendment. However, this is not simply about technology; it is also about the impact of the Act, as it will then be, upon the liberties of the people and about the nature of the various powers that we are enacting in the course of our proceedings. We therefore need some clarification: is it about the Government reviewing, or is it about Parliament reviewing? What precisely are we reviewing? I think everyone agrees with the principle, but we have to look carefully at the way in which Parliament reviews. If the amendment is eventually accepted then, frankly, it has to be secondary to parliamentary scrutiny.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the questions that have been asked are interesting. Times are changing, as is the nature of the threats. Who would have thought 30 years ago that we would be sitting here worrying about online grooming, ISIS terrorism and kidnapping or sophisticated cybercrime and money laundering? Who would have known that they were the challenges that would face us? Who would have talked 30 years ago about apps, internal emails—which we can get on our phones, according to some of my friends—and similar matters?

We will come back to issues of encryption. Technology is changing all the time, as is the modus operandi of those who wish us harm. Added to that, as I think my noble friend was alluding to, are the new powers in the Bill and the very welcome safeguards—the privacy measures and the double lock. These are new measures and we will want to see whether they achieve what the Government hope for them.

There are therefore two issues: first, how are the Government themselves going to monitor whether the Bill is achieving what they want; and, secondly, as alluded to by my noble friend, how will we then have formal post-legislative scrutiny to see whether they are what Parliament wants, and what is the correct time for that? The issues raised about reviewing these important powers and about the rapid change both in the technology and in the threats are ones that we want to be assured will be monitored and reported back on.