Investigatory Powers Bill

Lord Oates Excerpts

Tuesday 19th July 2016 Lords Chamber

[Lord King of Bridgwater (Con)]

My Lords, I will speak briefly. The Committee has listened with great interest to the noble Lord, Lord Strasburger, who was a member of the Joint Committee, which agreed unanimously—himself included—to this statement:

“We agree that all of the proposed purposes for which access to ICRs could be sought are appropriate”.

It went on to say:

“Whether ICRs are included or not”—

subject to the European Court of Justice—

“we believe that, in light of the ongoing need for communications data and the imminent expiry of DRIPA, a continued policy of some form of data retention is appropriate and that these provisions should accordingly form part of the Bill”.

A number of us have come to this Committee anxious to see the work done under the noble Lord, Lord Murphy, whose chairmanship of the Joint Committee was impressive. We were under the impression that its report was an accurate record. Now the noble Lord, Lord Strasburger, stands up and says something entirely different from what was unanimously agreed in the Joint Committee.

[Lord Oates (LD)]

My Lords, I will speak in support of Amendment 156A but I also support Amendment 147A, which was moved by my noble friend Lord Strasburger. I will not go into all the details set out so ably by my noble friends Lord Paddick and Lord Strasburger but there are some key issues which really have to be addressed. It is not good enough, frankly, to say that the Joint Committee may have said this or that; we need answers to the questions that have been posed.

The first question is: why is it that the United Kingdom, as far as I understand it—I hope that the Minister will correct me if I am wrong—uniquely among the “Five Eyes” countries requires this power? Indeed, as far as I understand it this is unique among any equivalent western democracies. I hope the Minister will tell us what is so unique about the situation we find ourselves in. It is not shared by the United States, Canada, New Zealand or any other western democracy.

Secondly, it is important to understand that, at the moment, 25 countries around the world are considering investigatory powers legislation—countries such as India, Pakistan and many others. They are looking towards us and at what we do. We have to think extremely carefully about what we are doing and we must ensure that our questions are answered. It is incumbent on the Government to do that.

We are also in a time of quite a lot of political upheaval. As a result, I doubt many people have been paying a huge amount of attention to the Bill. I imagine the public will be absolutely horrified when they discover that Parliament has granted a power to government to insist on the retention of the details of every single person in this country’s access to every single website. They will want to know why and they will want to know under what conditions of security such information is to be held. They will want to know the cost and whether this Parliament rigorously examined the cost and the need for their data—the data of innocent people—to be held in this manner. It is not good enough for us just to say that this power might be desirable or useful at some point; we have to be clear that it is proportionate, that it can work and that it can be held securely.

[Lord King of Bridgwater]

Does the noble Lord not remember that some of us tried to anticipate some of these problems and bring in amendments to a previous Bill? We were told then that we must not rush this. This Bill must now have been subject to the most exhaustive scrutiny of any that I can remember. It has been the subject of three independent reports and of scrutiny by a Joint Committee of both Houses, on which the noble Lords, Lord Murphy and Lord Butler, who are present, and other Members served. The noble Lord stands there and suggests that this is some impetuous reaction to a problem that has just arisen. I have been critical—I should have liked to see earlier action—but I accept that the Government decided that the Bill should be subject to the most exhaustive public scrutiny that I can remember for any Bill. In fairness, the noble Lord might recognise that in his speech.

[Lord Oates]

If the noble Lord had been in his place at Second Reading, he would have heard me give exactly that recognition. I recognise entirely the scrutiny and excellent work. I note that it is only because of the actions of people such as the then Deputy Prime Minister, Nick Clegg, that we had that scrutiny. I am grateful that we had it and the Bill is much better as a consequence. I welcome it. That does not mean, however, that as a result of that scrutiny we should abandon our Committee proceedings; it does not mean that those of us who have not served on Joint Committees should not be able to ask questions or seek answers. That is certainly what I will continue to do in this matter.

What is being required is an extraordinary power. We must be absolutely clear about that: it is unique. The noble Lord, Lord King, the Minister or any other noble Lord needs to explain—and nobody has, certainly not in all the proceedings so far in this House—why we, uniquely, need this power. The power is one that even such eminent people as my noble friend Lord Carlile—no slouch on counterterrorism measures—have questioned in the past. Indeed on 25 May 2013, he penned an article, I believe in the Daily Mail, in which he said:

“I, Lord Reid, Lord West and others of like mind have never favoured the recording of every website visited by every internet user, though we have been accused of that ambition”.

I hope the Minister will correct me if I am wrong, but as I understand it that is exactly what is proposed: the retention of data on the internet connection records of every internet user in the country. I hope that the Minister will address and answer all the detailed points put by my noble friends Lord Paddick and Lord Strasburger, and tell the House why we, uniquely, need a power required by no other constitutional democracy of a similar type in the world.

[Lord Strasburger]

I assure my noble friend and the noble Lord, Lord King, that the report by the Joint Committee was not unanimous. We had something like 10 divisions, and for some peculiar reason I found myself on the wrong end of most of them.

--- Later in debate ---

[Lord Oates]

Does the Minister accept that the point is not just that we are in front of other common-law jurisdictions such as the US, New Zealand and Australia but that, in the case of Australia, as alluded to by my noble friend Lord Strasburger, this issue was specifically considered by the Australian Government and Parliament, and the Australian data retention law specifically excludes the collection of such information precisely because it was felt to be a disproportionate invasion of privacy?

[Lord Keen of Elie]

I invite the noble Lord to have a little more confidence in the parliamentary procedures in the UK, in the scrutiny that is being given by our institutions to the provisions of the Bill, and even in the Committee procedures of this House. We have looked with care at these matters repeatedly and have come to a view regarding ICRs.

--- Later in debate ---

[Lord Keen of Elie]

I am most obliged to the noble Lord for his intervention. Of course, I did not accompany him to the NCA, so I do not know what examples he was or was not given, and nor did I prepare or draft the operational examples that he referred to earlier. Of course, there are other means by which evidence may be gathered for the purpose of prosecution, but we are looking to the most effective means of doing this going forward, remembering that people are moving away from telephonic communication—using mobiles and telephone systems—and into the use of internet connection by way of such examples as WhatsApp. Our police forces will be blinded if we allow that development and do not attempt to keep up with such developing technology.

On the question of whether there is an evidential requirement, I note that the noble Lord now acknowledges that there is an evidential requirement in the sense that intelligence gathered by way of interception is not admissible as evidence in court.

The question of the cost of carrying out this exercise was raised. The figure of £1 billion has been put about repeatedly, and the experience in Denmark has been referred to on many occasions. However, one has to look at this from the perspective of the United Kingdom and its approach to this matter. We do not accept the estimate of £1 billion that has been given, and indeed—in response to the inquiry from the right reverend Prelate the Bishop of Chester—the current estimate of costs is about £175 million. Our figures factor in the existing infrastructure and the requirements already placed on individual communications service providers, as well as the technical complexity of their networks in this context.

One has to bear in mind that, for example, the Data Retention and Investigatory Powers Act 2014 and the Counter-Terrorism and Security Act 2015 already provide for the retention of source IP addresses and port numbers, which make up part of an internet connection record. So I cannot accept the assertion from the noble Lord, Lord Strasburger, that none of these records are provided for under existing legislation. Furthermore, the Bill allows the Government to require the retention of communications data, including internet connection records, only when necessary and proportionate. One must not lose sight of that test in this context.

So we consider that a case was made in the reports regarding internet connection records. We entirely agree with the view arrived at by the Joint Committee. The noble Lord, Lord King, has already quoted from its report that,

“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.

That has been clearly established by the work that has been done. I acknowledge that of course the Committee of this House wishes to scrutinise this legislation, and it is right that it does so, but it is helpful if it does so against the background and with an understanding of the pre-legislative scrutiny that has already taken place, with regard to the three reports and indeed the recommendations of the Joint Committee. So we submit that the ability to require the retention of internet connection records is a fundamental power that will provide substantial benefits to law enforcement and indeed to the security and intelligence agencies. It is in these circumstances that I say that we cannot support Amendment 156A.

I turn for a moment to Amendment 147A, which seeks to require judicial commissioner approval for applications to acquire internet connection records. I hope that I can persuade noble Lords that the amendment is not needed because we already have a stringent authorisation regime in place that protects against the abuse of applications for communications data. Indeed, the noble Lord, Lord Carlile, alluded to the suggestion that somehow our security agencies and police would have such time on their hands that they would simply roam around such communications data for their own amusement. One is entitled, surely, to discount such a proposition.

The Bill contains robust safeguards for every stage of the acquisition of any form of communications data. This includes requiring the use of an expert single point of contact; authorisation by a designated senior officer who is independent of the investigation and who must be of a rank approved by Parliament; comprehensive oversight by the new Investigatory Powers Commissioner; and the new offence of unlawfully acquiring communications data from a telecommunications operator.

On top of those general requirements, there are extra, specific safeguards for the acquisition of internet connection records. So internet connection records will be able to be acquired only if they are needed for one of the four specified investigative purposes—and local authorities, for example, will be barred from acquiring internet connection records in any form. As well as these protections, we have also tabled an amendment that provides for a crime threshold that must be met before internet connection records can be acquired. We addressed this issue earlier. This will prevent their use for low-level crimes.

So while we recognise that there are sensitivities concerning internet connection records, they will, among other things, be fundamental in resolving IP addresses in certain cases. For example, where the telecommunications operator uses technology that allocates the same IP address to a number of different customers, the internet connection record will help to determine the specific individual in whom law enforcement is interested. There has been cross-party agreement that we need to solve the problem of IP address resolution and I cannot see how it would make sense to require judicial authorisation for some types of IP address resolution but not for others, simply because of the technology that a telecommunications operator uses.

If a public authority were considering acquiring internet connection records in a way that was novel or contentious, it would certainly be right for additional safeguards to apply. That is why the draft communications data code of practice requires any novel or contentious application for communications data to be referred to the judicial commissioner. The Government believe that it is absolutely right that novel or contentious cases are referred to the commissioner, but we do not believe that the tried and trusted authorisation system for communications data should be fundamentally changed when there is no evidence that it is not working. Furthermore, none of the three independent reports that we have referred to and which informed the drafting of this Bill—from David Anderson, the ISC and RUSI—suggested or recommended any changes to the authorisation regime for communications data.

Finally, the noble Lord, Lord Strasburger, referred to the recent opinion of the Advocate-General in the case of Watson in the CJEU, which came out this morning. We note what was said in a fairly lengthy opinion. Your Lordships will be aware that that is the opinion of the Advocate-General, not the judgment of the court; a final judgment is anticipated in the autumn of this year. The Government maintain that the existing regime for the acquisition of communications data and the proposals in the Investigatory Powers Bill are compatible with EU law, and clearly it would not be appropriate to comment further while legal proceedings are ongoing. In these circumstances, I invite the noble Lord to withdraw his amendment.

[Lord Oates]

The Minister may have given an impression, which I am sure he did not intend, that by scrutinising the Bill and seeking to do so, noble Lords were somehow not cognisant of the history of the development of these proposals and of the various bits of scrutiny. He should correct that. I myself spent five years in the coalition Government very much involved in these discussions, and one reason I am sceptical about many of the things I hear about why we must do things is because I have heard them before. For example, on the third-party data issue, the Independent Reviewer of Terrorism Legislation David Anderson said in his report that it was unnecessary and no operational case had been made for it. So I want the Minister to be clear on that. Noble Lords are concerned not because they have not studied or are not aware of these things but because they are very much aware of them.

[Lord Keen of Elie]

No doubt noble Lords are cognisant of the three reports and the Joint Committee’s recommendations on the Bill. But I sought and seek to remind noble Lords of what those recommendations contained and of the terms of the Joint Committee’s report—particularly as the noble Lord, Lord Strasburger, who was a member of that committee, seemed to think it appropriate to depart from the recommendations which appear to have been made in its report.