Investigatory Powers Bill

Lord Paddick Excerpts

Report: 2nd sitting (Hansard - part two): House of Lords
Monday 17th October 2016 Lords Chamber

Moved by

[Lord Paddick]

131A: Clause 205, page 161, line 11, at end insert—
“( ) There shall be a body corporate known as the Investigatory Powers Commission comprising—(a) the Investigatory Powers Commissioner;(b) Judicial Commissioners; and(c) staff to support the Commissioners.”

[Lord Paddick (LD)]

My Lords, this amendment stands in my name and that of my noble friend Lady Hamwee. It introduces to the Bill a body corporate known as the investigatory powers commission that comprises the Investigatory Powers Commissioner, judicial commissioners and staff to support the commissioners. I am relying heavily on, and am very grateful to, the Interception of Communications Commissioner’s Office in this matter.

At present the Bill creates only a chief judicial commissioner and a small number of judicial commissioners. The commissioners will be responsible for approving approximately only 2% of the applications falling within the remit of the oversight body. Most of the applications made under the Bill are likely to be for communications data, for example, individual applications for which are not subject to prior approval by a judicial commissioner. The remaining 98% will be subject only to post-facto oversight.

The post-facto oversight will be carried out predominantly by specialist inspectors, investigators, analysts and technical staff working to the Investigatory Powers Commissioner, and it is important for those individuals to have a delegated power to require information or access to technical systems. According to the Interception of Communications Commissioner’s Office:

“The creation of a Commission is crucial to achieve a modern, inquisitive oversight body that has the expertise to carry out investigations and inquiries to the breadth and depth required and the intellectual curiosity to probe and challenge the conduct of the public authorities”.

I shall expand on what IOCCO means by that.

First, it means that the specialists do not have to wait to be tasked by the commissioner but can use their initiative and expertise to follow the evidence and conduct post-facto scrutiny where they believe it is most needed. Secondly, other commissions, such as the Independent Police Complaints Commission, are bodies corporate whose investigators have all the powers of their commission. This prevents police officers saying, “I’m not talking to you, Mr Investigator. I am only going to talk to a commissioner”. The Government may say that there is no direct parallel here but they would be wrong.

The Intelligence Services Commissioner was asked by the then Home Secretary, Theresa May, to carry out an investigation into what the security services knew about those involved in the murder of Fusilier Lee Rigby. In his supplemental report to his 2015 annual report, Sir Mark Waller, at paragraph 5.3(4), talks about his attempts to have counsel, Mr Sanders, who was carrying out the investigation on the commissioner’s behalf, present during the interviews of some of those involved:

“Prior to these interviews taking place, SIS told me that Desk Officer 1 and Intelligence Officers 1 and 3 objected to Mr Sanders being present and so he did not attend. I have since been told by SIS that this objection in fact came from its senior management. I very much regret that this was not made clear to me at the time as I would have challenged it” "

The fact is that, unless those carrying out post-facto scrutiny are part of a body corporate, as in the case of the IPCC, those whom they are supposed to be scrutinising can refuse to co-operate with them and demand that they deal with the Investigatory Powers Commissioner alone.

The IOCCO says:

“Putting the oversight Commission on a statutory footing will be a huge step towards guaranteeing independence, capability and diversity within the organisation which will inspire public trust and confidence”.

It goes on to say:

“Creating an oversight Commission would also help make a distinction between the approval and post-facto audit elements of the oversight body, addressing a concern raised by a number of witnesses to the Joint Committee that the Judicial Commissioners should not be perceived to be ‘marking their own homework’”.

This of course refers to the fact that in the 2% of cases where a warrant was approved by a judicial commissioner, without the establishment of a commission it could understandably be perceived by the public that the judicial commissioners were post-facto auditing the decisions of other judicial commissioners. Although this may be an accepted practice in the legal profession—in the courts and so forth—it is likely to be lost on the general public. The Interception of Communications Commissioner’s Office concludes:

“We urge the Government to implement this recommendation which was also made by the RUSI Independent Surveillance Review, David Anderson QC and the IP Bill Joint Committee”.

The amendment seeks to implement that recommendation. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we are satisfied that the speedy and effective establishment of the office of Investigatory Powers Commissioner will provide the staff, expertise and structure to implement the Bill. As the noble Earl will know, we have queried whether the resources will be made available and we will continue to keep an eye on that. However, we see no rationale as to why a body corporate, with all the governance, other requirements and bureaucracy, would be better at achieving the balance that we seek, which is the timely, appropriate and thorough oversight of the powers in this Bill, taking full account of civil liberties and the need to prevent or apprehend crime, and dealing with threats from those who wish us harm.

It is possible that I have misunderstood what the noble Lord, Lord Paddick, said, but it seemed that he wanted the staff to have some of the commissioner’s authority. For ourselves, we have relied very much on the judicial commissioners, with the powers given to them under the Bill, and the IPC himself or herself to do this, and we would certainly not want to detract from their authority in any way.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, Amendment 131A seeks to provide in the Bill for an investigatory powers commission in addition to a commissioner. I listened with care to the noble Lord, Lord Paddick, and I understand how strongly he feels about this issue. The Government have been clear throughout the passage of the Bill that the Investigatory Powers Commissioner will lead a powerful new body—the noble Lord and I are, I think, in agreement on that principle. However, the Government have been equally clear that there is no need to create that body in statute. Our principal reason for adhering to that view is that doing so would not confer any new powers, duties or responsibilities on those working for the commissioner, nor would it affect their ability to audit, inspect and oversee public authorities.

I am the first to recognise the importance of public perception. However, as to whether it would benefit public perception to create a commission, I cannot see what advantages an anonymous quango holds over a senior, independent judge. The oversight and authorisation of investigatory powers are vital tasks that need to be performed and need to be performed well. Therefore, in my submission, it is right that an identifiable individual is ultimately responsible for them.

It is the difference between having a person with a public face and a body that risks being seen by the public as faceless. Since the oversight powers and duties are ultimately placed on the Investigatory Powers Commissioner, we logically expect that commissioner to be the public face of the body. It is the commissioner who will be called on to lead the public debate on these issues and to give his or her expert and considered legal view on the matters in the Bill. If, for example, someone receives a notification of an error under Clause 209, or if a report is made under Clause 212, it is better that such communications should come from a senior, named judicial figure rather than a faceless organisation.

Of course, it is necessarily the case that the commissioner will rely on the work of an extensive staff of expert inspectors and advisers. Again, though, I argue that that does not necessitate the creation of a commission in statute. When an inspector walks into a public authority, the fact that they are an employee of an investigatory powers commission would not give them any greater powers than if they are a representative of the Investigatory Powers Commissioner. I agree with one element of what the noble Lord, Lord Paddick, said: it is right that, in such circumstances, those employees should wield appropriate authority. The Government have listened to concerns expressed on this point and tabled amendments, which we will come to later, to make clear that the commissioners can delegate powers under the Bill to their staff. That will make absolutely clear that when the experts and inspectors employed by the commissioner go about their work, they do so with the full force of the commissioner behind them.

Moreover, creating a new body in statute would require the establishment of a board to run that body, complete with at least three non-executive directors. I was grateful to the noble Baroness, Lady Hayter, for her remarks on this point. In the eyes of many, this would muddy the waters of accountability and introduce considerable new bureaucracy into the work of the commissioner. It is much better that the commissioner’s resources and attention should be focused on overseeing the work of public authorities and providing public assurance, rather than on servicing a burgeoning bureaucracy.

[Lord Paddick]

Can the Minister reassure me that the circumstances that the Intelligence Services Commissioner found himself in—that is, with one of his investigators effectively being excluded when he was involved in investigating what the intelligence services knew prior to the murder of Fusilier Lee Rigby —could not happen in the absence of a body corporate being set up, as this amendment suggests? There are concerns that people in the security services might not acknowledge the authority of the inspectors if it is not the case.

[Earl Howe]

I fully believe that the amendments we have tabled will give inspectors the authority that is equivalent to that of a judicial commissioner. Although I was not aware of the case that the noble Lord cites, I think the government amendments will put the situation beyond doubt, if ever there was any. I do not believe that the problem the noble Lord refers to has ever impacted more widely on the ability of inspectors to do the job that is required of them; I like to hope that that was a one-off problem. However, with the benefit of the government amendments, it simply should not be an issue.

I hope I have reassured the noble Lord. Certainly, we cannot overlook the point that the creation of a new body would come at significant financial cost that would be of no gain in terms of public reassurance or effective oversight. As I have argued, it might risk making the oversight regime less clear. For a bunch of reasons, I hope the noble Lord will feel comfortable in reconsidering his amendment.

[Lord Paddick]

I am very grateful to the Minister. I am not sure that he is entirely reassured that the government amendments will deal with this issue, but I accept that that is because he did not have sight of my example prior to the debate. I regret not giving him notice that I would be bringing it up. However, given all the circumstances, I beg leave to withdraw the amendment.

Amendment 131A withdrawn.

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Moved by

[Lord Paddick]

137A: After Clause 208, insert the following new Clause—
“Notification by the Investigatory Powers Commissioner
(1) The Investigatory Powers Commissioner shall notify the subject of a warrant (“P”) which is—(a) a targeted interception warrant issued under Part 2,(b) a targeted examination warrant issued under Part 2,(c) a targeted equipment interference warrant issued under Part 5, or(d) a targeted examination warrant issued under Part 5,that P has been so subject, in accordance with this section.(2) Notification shall not be given if—(a) P is suspected of being involved in terrorism-related or other criminal activity,(b) it might prejudice any continuing or anticipated investigation concerning P or any other person, or(c) the Investigatory Powers Commissioner determines that it is in the interests of national security or the public interest in preventing or detecting serious crime that it is not given;and in any event notification may be given only if the investigation to which the warrant relates has concluded and there is no suspicion that P is engaged in any unlawful activity.(3) The notification—(a) shall inform P of the provisions for the authorisation or warrant, but(b) shall include no details of the methods used or any other matter which might hinder any future investigation into P or any other person, and(c) shall be given in writing within 90 days after— (i) the conclusion of the investigation (subject to subsection (2));(ii) cancellation of the authorisation or warrant;(iii) a determination that it may be given having regard to the matters referred to in subsection (2)(c).”

[Lord Paddick]

My Lords, I shall also speak to Amendments 137B to 137F in my name and that of my noble friend Lady Hamwee. We return to the issue of informing innocent people when they have been subjected to targeted surveillance by law enforcement or the security and intelligence agencies. The European Court of Human Rights said in 2007:

“As soon as notification of targeted surveillance can be made without jeopardising the purpose of the surveillance after its termination, information should be provided to the persons concerned”.

When we raised the issue in Committee, the Minister raised a series of quite reasonable objections, which we have tried to address in this new amendment.

In Committee, the Minister said:

“It would not be practical, for example, for the commissioner to make everyone whose data were subject to a data retention notice aware of that fact”.

Of course, we agree. We therefore restrict the notification requirement to targeted interception warrants, where a person’s communications are intercepted, and targeted examination warrants, where communications are acquired in bulk and a UK citizen’s communications are among those acquired in bulk and the security and intelligence agencies wish to examine those communications. The provisions would also apply where a targeted equipment interference warrant is used. This would ensure that only when the specific individual’s communications are intercepted or equipment interfered with would notification have to be considered.

In Committee, the Minister said that,

“we would need to notify suspected criminals and terrorists that they have been under investigation just because a specific ongoing investigation had stalled or, indeed, had concluded with evidence of wrongdoing but with insufficient evidence to bring a prosecution”.

We have therefore written into the amendment that notification shall not be given if the person is suspected of being involved in terrorism-related or other criminal activity.

In Committee, the Minister said that,

“suspected criminals and terrorists will often appear on the radar of the police and the security services at different times in the context of different investigations. It would clearly not be appropriate to inform them that investigatory powers had been used against them in a particular case”.

Of course, we agree. The amendment now states that notification shall not be given if it might prejudice any continuing or anticipated investigation concerning the subject of the surveillance or any other person.

The Minister said in Committee that our amendment,

“would put unreasonable burdens on all public authorities covered by this Bill to require them constantly to need to make a case to the commissioner as to whether it would hamper national security or serious crime investigations if subjects were told that investigatory powers had been used against them”.

We do not agree. We hope that the number of occasions when completely innocent people are targeted will be small and the amendment now includes the provision that notice should not be given if the Investigatory Powers Commissioner determines that it is in the interests of national security, or the public interest in preventing or detecting serious crime, that it is not given. In most cases, this will be obvious and require no further justification from the public authorities.

The Minister in Committee further objected that notification would,

“not just run contrary to the long-standing policy of successive Governments of neither confirming nor denying any specific activity by the security and intelligence agencies, but would essentially require the techniques the agencies use in specific cases to be made public”.—[Official Report, 5/9/16; col. 858.]

It has not been the long-standing policy of successive Governments to deny that the security services kept a record of the details of every phone call made in the UK until recently and it is not a reasonable argument simply to say, “That’s what we’ve always done”. However, we have taken on board the Minister’s other criticisms and included in the amendment that notification,

“shall include no details of the methods used or any other matter which might hinder any future investigation”.

Having, I believe, dealt with all the objections the Minister raised in Committee, I hope the Minister responding will reconsider whether post-event notification could, in the circumstances I have described, be allowed, and that the Government will accept the amendment.

Amendments 137B to 137E are related to Amendment 137A, to the extent that they seek to tighten up on error reporting. Amendment 137B deletes the phrase “the Commissioner considers that” from Clause 209(1), so that the commissioner must report a serious error whether or not they consider it so. Whether the error is serious should be an objective test, not a subjective consideration by the commissioner. Amendment 137C deletes the condition that,

“it is in the public interest for the person to be informed”.

Surely, if the error is serious it should be reported—or, to put it another way, surely it must always be in the public interest if the error is serious.

Amendment 137D would delete the provision stating that notification should be given only if the error has caused “significant” prejudice or harm to the person concerned, and adds wording so that the clause would state that they should be notified if the error,

“has caused or may cause prejudice or harm to the person concerned”.

The argument here has echoes of an amendment that the Government rejected earlier on Report—that asking a commissioner to make a decision on whether the prejudice or harm is significant muddies the waters.

Amendment 137E would delete Clause 209(9)(b), which defines a relevant error. There appears to us to be no need to describe in regulations the kind of error to which these provisions relate. We believe that the definition in Clause 209(9)(a) is sufficient.

Amendment 137F relates to the final paragraph of Clause 209, which states that the Investigatory Powers Commissioner should,

“keep under review the definition of ‘relevant error’”.

We have added a requirement that any recommendations should be included in reports made under Clause 212, which covers annual and other reports required from the Investigatory Powers Commissioner.

I beg to move Amendment 137A.

[Lord Rooker (Lab)]

Can the noble Lord explain proposed new subsection 3(b)? Could the subject of a warrant challenge that subsection using other legislation —on the fact that there are “no details”, for example? Is it open to challenge by that person, using any of the other laws on the statute book?

[Lord Paddick]

I am grateful to the noble Lord, Lord Rooker. I have absolutely no idea whether they could or could not.

[Lord Rooker]

I submit that they could. The lawyers will find a way to fill the courts with challenges from the crooks and spivs we are trying to protect the British public from. But I will wait for the Minister’s technical answer, rather than the one I gave.

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Amendments 137E and 137F seek to amend the definition of “relevant error” and to place an obligation on the commissioner to report annually on any recommendations that he or she makes about that definition. To be clear, in respect of the first of these amendments, the provision in Clause 209(9)(b) is intended to ensure that members of the public can be absolutely clear about what constitutes a relevant error. It does so by requiring that such errors are described in the statutory codes of practice to be made under the Bill, which will be subject to a full, public consultation and debated and agreed by Parliament. In respect of Amendment 137F, it is of course the case that the commissioner will report publicly on the definition of relevant errors as he or she sees fit. I do not see that there is any benefit in making this a statutory requirement. I hope that has provided some important assurance on these important provisions and I invite the noble Lord to withdraw this amendment.

[Lord Paddick]

I am very grateful to the noble and learned Lord for his explanations, which I will take time and care to read particularly in relation to Amendments 137B to 137F, the latter amendments. Regarding Amendment 137A, I am still concerned at what might happen should somebody bring an action before the European Court of Human Rights, bearing in mind what it has said about the importance of informing people who have been the subject of targeted surveillance. However, at this stage I am prepared to leave that to the courts rather than to the House this evening and on that basis, I beg leave to withdraw the amendment.

Amendment 137A withdrawn.

Investigatory Powers Bill

Lord Paddick Excerpts

Report: 2nd sitting (Hansard - part one): House of Lords
Monday 17th October 2016 Lords Chamber

Moved by

[Lord Paddick]

100C: Clause 64, leave out Clause 64

[Lord Paddick (LD)]

My Lords, I shall also speak to Amendments 100D and 100E in my name and that of my noble friend Lady Hamwee. The effect of these amendments would be to remove the request filter from the Bill. No doubt, the name “request filter” has been chosen for its potential to be beneficial in terms of limiting intrusion into privacy, while at the same time I believe it conceals its true nature and the considerable downsides that such a thing would have. I am struggling to find a word that describes something that does not exist and which the Home Office is unable to describe except in terms of its proposed positive outcomes. When I visited both the law enforcement and security agencies in preparation for the Bill they could throw no more light on the detail of this proposal or give any reassurance as to its security. What we know is that it is something akin to a Google search engine, a system built and possibly operated by the private sector on behalf of the Home Secretary. The request filter will act as the go-between between law enforcement and security agencies and the communications providers.

We have had lots of debates in the course of the Bill on the trustworthiness of the police and the security services. Perhaps it would not be too unkind to say that the security services have come out on top, with law enforcement agencies trailing slightly. When we consider the Government’s failure to implement such measures already in legislation, such as the Privacy and Civil Liberties Board and the Leveson recommendations, one might not be too severely criticised for putting the Government a poor third in this line-up of trustworthiness. The request filter would give the Government, in the guise of the Home Office, unfettered access to communications data, including internet connection records. Of course, having unfettered access would also mean that, if security were to be breached, it would provide criminals and hostile foreign Governments with similar unfettered access to private and confidential information of every subscriber to UK communications and internet services.

At present, as noble Lords will be aware, almost every request for communications data—of course, that does not include internet connection records, because these are not part, yet, of communications data—is made by investigators to a single point of contact in their own organisation. The SPOC, as they are known, assesses the validity of the request and, if satisfied, passes it to the communications provider, which again assesses whether it is a valid claim. There is, in effect, a double lock: an independent and specially trained SPOC and an independent and specially trained person in the communications company, both of whom can block unnecessary and disproportionate requests.

As far as anyone can understand such a vague concept as the request filter, it appears that it would be linked into the communication providers’ databases and be able to search and retrieve data with no independent check. The Government may say that the people operating the request filter will be the independent check, but they will be Home Office officials or staff of a private company working on behalf of the Secretary of State. Not many of us, and certainly very few members of the public, would rest assured that their sensitive personal information was in the hands of politicians or those acting on their behalf.

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[Earl Howe]

My Lords, I feel that I have to begin by saying to the noble Lord, Lord Paddick, that he has got this one wrong—indeed, very wrong. I am grateful to the noble Lord, Lord Carlile, the noble Viscount, Lord Brookeborough, my noble friend Lady Harding and the noble Lord, Lord Rosser, for the contributions that they have made.

The amendments seek to remove Clauses 64, 65 and 66 from the Bill, which provide that the Secretary of State may establish, maintain and operate filtering arrangements for communications data—colloquially referred to as the “request filter”—and detail the appropriate safeguards and restrictions around its use. Throughout the passage of the Bill we have repeatedly highlighted the many misconceptions and misrepresentations around the filtering arrangements, and we have demonstrated how the provisions in fact provide an important safeguard in the acquisition of communications data. It is therefore perplexing that the noble Lord, Lord Paddick, has given notice that he remains opposed to the clauses providing for the filtering arrangements to stand part of the Bill. It may therefore be helpful if I set out again what the filtering arrangements will actually do and not do.

Public authorities currently need to receive all the communications data disclosed by communications service providers in response to specific requests. In certain circumstances this amounts to more data—sometimes much more data—than are relevant to their investigation, and they will then need to determine which specific pieces of communications data are relevant. Perhaps I could illustrate with an example. The police may need to make a complex query, such as asking multiple communications service providers for data to identify an unknown person who is suspected of having committed a crime, such as armed robbery, at three different places at different times. Currently, public authorities might approach communications service providers for location data to identify all the mobile phones used in those three locations at the relevant times to determine whether a particular phone and a particular individual is linked to the three offences. This means that the public authority may acquire a significant amount of data relating to people who are not of interest but who just happened to be in the location at the time of the robbery.

The significance of the request filter is that, when a police force makes such a request, they will see only the data that they need to. Any irrelevant data about people who are not suspects will be deleted and not made available to the public authority. That is why I maintain that the filter acts as a vital safeguard, protecting privacy by ensuring that the police see only the data they need to. These amendments would remove that important safeguard—so it is perplexing, as I say, that the noble Lord wishes to do this.

To further reassure the House, I remind noble Lords of what the Joint Scrutiny Committee on the draft Bill stated about the filtering arrangements. It stated:

“We welcome the Government’s proposal to build and operate a Request Filter to reduce the amount of potentially intrusive data that is made available to applicants”.

The Joint Committee believed that the requirement upon law enforcement to state the operational purpose of accessing data through the filter and the oversight of the Investigatory Powers Commissioner will ensure the appropriate use of the filter.

The noble Lord, Lord Paddick, said that the Bill provided for unfettered access to private and confidential information. But access is not unfettered—and nor does the Bill permit fishing expeditions, as the noble Lord, Lord Carlile, rightly emphasised. The filtering arrangements can operate only in response to a specific, necessary and proportionate authorisation for the acquisition of communications data. That request must already have gone through all the existing communications data safeguards, such as authorisation by a designated senior officer of a rank specified by Parliament, who must be independent of the investigation.

I noted with some dismay the aspersions cast by the noble Lord on the likely integrity of those individuals actually retrieving the data—including, to my surprise, the integrity of the police. I am pretty shocked by the language that he used. The noble Lord also described the filter as a “database”. A database has to contain data. The filter will not hold any communications data. Once a request has been processed by the filter, any data—that is to say, all data—will be discarded. I hope that that does clear some of the fog.

The request filter will act as an important safeguard. It will ensure that police officers and others will see only the information they really need to in those cases where it is used. Accordingly, I respectfully request that the noble Lord, Lord Paddick, withdraws his amendment.

[Lord Paddick]

I thank the Minister for his remarks, and other noble Lords who have contributed. I acknowledge the great experience of my noble friend Lord Carlile of Berriew both as a lawyer and as a former Independent Reviewer of Terrorism Legislation. However, it is clearly untrue for him to say that, in his judgment, excluding the request filter from the Bill would reduce the capacity of the authorities to investigate cases. The request filter does not exist at the moment, so it cannot possibly reduce the capacity. It may restrict the capacity of the agencies in the future, but it will certainly not reduce it, because the authorities do not have a request filter at the moment. The “monster” that I alluded to is nothing other than the mechanism—the request filter—that these clauses and this amendment are all about.

My noble friend described two murder cases where convictions could not have happened were it not for the sort of data that we are talking about here. Those two convictions were obtained in the absence of a request filter, because the filter does not exist. So it is clearly nonsense for my noble friend to say that excluding the request filter from the Bill was likely to have impacted on convictions that relied on something that does not even exist at the moment.

I acknowledge the experience of the noble Viscount, Lord Brookeborough, in Northern Ireland. As the Minister said, this is not a database. It is not intelligence information that is gathered and stored. It is a mechanism—a piece of kit, if you will—that reaches out into databases held by private companies, such as the internet service provider led by the noble Baroness, Lady Harding of Winscombe, retrieves data and brings it back. As the noble Earl said, it is not about a real database but a virtual or federated one. In other words, the tool will effectively act as a database rather than being an actual one. I am sorry that, in the number of times that I have used this expression—at Second Reading, in Committee and now on Report—I have not been able to get my message across about the difference between a virtual database and a real one. But I think that it is time I stopped flogging that horse.

The noble Lord, Lord Rosser, is reassured that Clause 2, the overarching privacy clause, applies to every power in the Bill. This is not a power: it is a piece of kit, a search engine. The Government have said nothing in their response to this amendment to reassure us that Clause 2 applies to this, because it is not actually a power. The Minister used the example which I spoke to, almost exactly, when I moved the amendment. To use his word, it is “perplexing” that the noble Earl did not hear my objections to that as a good example.

The unfettered access that I am talking about is not unfettered access to data by the police and the security services, and I never suggested that it was—but there will be unfettered access by those who operate the request filter because the request filter will have direct access to the databases operated by the communications providers. So I am not saying that there would be unfettered access to data by the police and security services; what I am saying is that government officials, or those acting on behalf of the Secretary of State, would have unfettered access to these databases were the request filter to come into existence. So I, too, am perplexed that the Government have not responded positively to this amendment and I wish to test the opinion of the House.

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Moved by

[Lord Paddick]

118A: Clause 84, page 67, line 26, leave out “therefore includes, in particular,” and insert “does not include”

[Lord Paddick]

My Lords, the effect of Amendment 118A, tabled in my name and that of my noble friend Lady Hamwee, would be to remove internet connection records from any notice requiring the retention of communications data by telecommunications operators.

It is important to look back over the history of internet connection records. The initial argument put forward by the Government and law enforcement agencies was that, with so many communications now being via the internet rather than via fixed line or cellular communication, it was essential to keep a record of every attempt to access the internet by everyone in the UK in the past 12 months, so that the same data that are currently available from an itemised phone bill—the who called who from where and when—would also be available if someone used the internet to communicate instead. If that is what ICRs were, and if ICRs provided that information, we might be more relaxed about them, but the parallel with itemised phone bills is clearly false. After the Joint Committee’s scrutiny of the Bill, the Government acknowledged that they wanted more than just the itemised phone bill data. They wanted to be able to see, for example, whether a suspected terrorist had accessed a travel agent’s website or a paedophile a particular file-sharing website.

Noble Lords will be relieved to hear that I do not intend to go over every objection to internet connection records—we would be here until the early hours if I did. Let us look just at itemised phone bill data. My internet connection records will show that about 10 different apps on my mobile phone that I can use to communicate with other people, including my Facebook app, my WhatsApp and iMessenger apps—which are end-to-end encrypted messaging apps—my Facebook Messenger app and my Twitter app, are all connected to the internet all the time. There will be no ICR data that tell law enforcement agencies where I was at a particular time, whom I was communicating with or whether I was communicating with anyone at all while these apps were connected to the internet.

If I was communicating with someone, the ICR data would contain no information about when I was communicating. Even if I was a simple soul and communicated using only WhatsApp, law enforcement would not be able to go to WhatsApp and say, “On this day and at this time, he was using WhatsApp. Who was he communicating with?” That is because the app is connected to the internet all the time and they would not be able to narrow it down to a particular date and time from the ICR data. They would have to ask for all my communications data over an extended period—an enormous volume of data that WhatsApp might consider a disproportionate request, save in the most serious cases.

Knowing someone’s internet connection records is just the start of the problems facing law enforcement agencies. I have another app on my phone. It is a virtual private network app. This app allows me to traffic all my connections to the internet through one secure server. If I engage it, my internet connection records will not show anything other than connection to the VPN server. Choose a VPN service provider whose server is in a non-co-operative foreign country and law enforcement will not be able to find out what connections have been made through the VPN server.

My point is that ICRs do not give law enforcement agencies the equivalent of itemised phone bill data. The agencies would have to go to each communications platform operator, most of whom are in the United States of America, and ask them for more information. They might not be inclined to give up those data except in very serious cases. If one simply used a VPN, law enforcement would not know to which operator to go to ask for more data. Even if it did, it would have to ask for vast quantities of data that would be difficult to process—and, in any event, the overseas operator would be likely to say that the request was disproportionate and refuse to hand over the data.

Noble Lords will notice that I keep emphasising law enforcement and serious cases. In cases of serious crime, including child sexual exploitation, GCHQ can assist law enforcement agencies. In a case affecting national security, agents representing MI5 have told me, face to face, that they do not need or want internet connection records; agents representing MI6 have told me face to face that they do not need or want internet connection record; and agents representing GCHQ have told me face to face that they do not need or want internet connection records.

If we strip away criminals who will soon get wise and use VPNs, if we strip away crimes that are not considered by US operators to be serious enough to hand over the data and if we strip away crimes that are so serious that GCHQ’s help can be sought—GCHQ can secure the necessary data without the need to store ICRs—we are left with very little. For that very little gain, everyone in the UK’s web histories will be stored for 12 months at enormous cost, and with enormous potential for intrusion into privacy and enormous risk of vast quantities of sensitive personal information being hacked into by criminals and hostile foreign Governments. The only valid conclusion anyone can come to in such circumstances is that the storage for 12 months of everyone’s ICRs is both unnecessary and disproportionate.

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[Lord Paddick]

My Lords, I am grateful to noble Lords who have contributed to this debate. Leaving his heavy sarcasm to one side, I must tell the noble Lord, Lord Harris of Haringey, that it is very easy to find out how to evade these measures. A simple Google search will tell a seven year-old all about VPNs; I am not giving away any trade secrets. He talked about terrorists and nasty people. If those nasty people are involved in serious crime or terrorism, the police and the National Crime Agency can enlist the help of GCHQ. Therefore, internet connection records will not be required.

I say to the noble Baroness, Lady Harding of Winscombe, that, yes, it is not a perfect system, but she is wrong to say that the security agencies say that it is people moving to communication via the internet that is making us less secure. Encryption is the real problem making us less secure. Why, otherwise, would GCHQ and the other security agencies say that they do not need internet connection records?

The noble Viscount, Lord Brookeborough, mentioned the vital question: is it reasonable, is it proportionate and where should the balance lie? However, as the right reverend Prelate the Bishop of Chester pointed out, there are other real questions which the noble and learned Lord failed to address about whether ICRs would in practice deliver what the law enforcement agencies want. My noble friend Lord Oates re-emphasised that this is a massive intrusion into privacy; that is why we oppose it. As he pointed out, in a child exploitation case, there is a joint operations unit between GCHQ and the National Crime Agency to deal with the issue.

Where I part company with the right reverend Prelate is on the suggestion that ICRs could be more targeted. There is nothing in the Bill to suggest that they will. On the content of websites, if someone accesses a domestic violence, gender reassignment or marriage guidance website, it is immediately apparent what they are looking into and it is a massive intrusion into privacy even if the record is only of the website they are looking at.

The noble and learned Lord has spoken to the National Crime Agency at length. I have been twice to the National Crime Agency, so I have spoken to it at length twice, and I still, as a former senior police officer, failed to be convinced.

I spent 30 years in the Metropolitan Police Service and ended up as a senior officer at Scotland Yard. If I thought that the balance here was right between invasion of privacy and the benefits that accrue to law enforcement, I would not be expressing these views.

I am a lousy politician. I cannot stand here and say things that I do not believe just because they are my party’s policy. I am opposing this because I genuinely oppose the disproportionate invasion of privacy that ICRs represent. That is why I wish to test the opinion of the House.

Investigatory Powers Bill

Lord Paddick Excerpts

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

Moved by

[Lord Paddick]

13: Before Clause 3, insert the following new Clause—
“Investigatory powers: civil liberties board
(1) An independent body, to be known as the investigatory powers: civil liberties board (referred to in this section as “the Board”), shall be established.(2) The Board’s primary purpose shall be to—(a) ensure that civil liberties are considered in the development and implementation of policy, legislation and executive action related to investigatory powers, and(b) analyse and review actions taken or proposed to be taken by the Government which relate to the use of investigatory powers, having regard to the need for such actions to be balanced with the need to protect privacy and civil liberties and the duties set out in section 2.(3) The Board shall be composed of a full-time chairman and four additional members who shall be appointed by the Secretary of State in consultation with the Investigatory Powers Commissioner and Independent Reviewer of Terrorism Legislation.(4) Members of the Board shall be selected on the basis of professional qualifications, achievements, public stature, expertise in civil liberties and privacy, and relevant experience, and without regard to political affiliation, and in no event shall more than three members of the Board be members of the same political party.(5) The Board—(a) shall have access to all relevant material (including classified information) held by any government department or agency;(b) may interview and take statements from personnel of any department and agency related to their functions;(c) may request information or assistance from any Government department or agency.(6) The Secretary of State may by regulations made by statutory instrument make provision for—(a) the payment of expenses and allowances to members;(b) the circumstances in which a person ceases to be a member;(c) the appointment of staff, their terms and conditions of employment and their pensions, allowances or gratuities.(7) The Board shall report to Parliament at least once annually on—(a) its activities and any recommendations; and(b) any other matters it considers appropriate.”

[Lord Paddick (LD)]

My Lords, Amendment 13 is also in the name of my noble friend Lord Strasburger. In Committee, we moved an amendment that would have triggered implementation of the Privacy and Civil Liberties Board that the Liberal Democrats in the coalition Government insisted was part of the package of measures included in the Counter-Terrorism and Security Act 2015. We withdrew that amendment but the Government have failed to give us any hope that it will be accepted. At this stage we are introducing a new amendment to establish an alternative Privacy and Civil Liberties Board based more closely on the well-regarded American model.

In the United States the Privacy and Civil Liberties Oversight Board is an independent, bipartisan agency within the executive branch. It comprises four part-time members and a full-time chairman, and the board is vested with two fundamental authorities: first, to review and analyse actions the executive branch takes to protect the nation from terrorism, ensuring that the need for such actions is balanced with the need to protect privacy and civil liberties; and secondly, to ensure that liberty concerns are appropriately considered in the development and implementation of laws, regulations and policies related to efforts to protect the nation against terrorism. We want a similar body in the UK, and we are not the only ones who do. The Prime Minister, when Home Secretary, committed the Government to,

“ensure we have more transparency from Government”,

which we are doing through this Bill. She continued:

“We will also reduce the number of bodies that are able to have access to the communications data”,

which, again, we are doing through this Bill, and,

“establish a privacy and civil liberties board based on the US model”.—[Official Report, Commons, 10/07/14; col. 472.]

It is only the latter commitment that this Government have failed to fulfil and which this amendment seeks to address. Noble Lords will see that the wording of the amendment seeks to reflect as accurately as possible the American model, which is widely seen as a world-class example of its kind.

[Lord Harris of Haringey (Lab)]

Is the noble Lord therefore saying that the American approach to this matter is totally protective of civil liberties?

[Lord Paddick]

My Lords, I am saying that the American model provides significant safeguards, in that somebody represents the side of privacy and civil liberties in the argument; it is not simply a case of the security agencies’ side being put, as perhaps some might see in this country.

Unlike the previous amendment, this amendment does not seek to replace the Independent Reviewer of Terrorism Legislation. On the contrary, noble Lords will see that the independent reviewer must be consulted on the appointment of members of the board. This is complementary to, not a replacement for, the Independent Reviewer of Terrorism Legislation. The current reviewer, Mr David Anderson, has previously argued that the post of independent reviewer is under-resourced and that it does not cover a wide enough range of laws. He said:

“If appropriately staffed and directed by the Independent Reviewer, the proposed new body could sharpen that investigative function and increase its scope”.

I accept that Mr Anderson also has concerns, and no doubt my noble friend Lord Carlile of Berriew, his predecessor, will tell us that he too has concerns. However, it continues to be the view of the Liberal Democrats—

[Lord Carlile of Berriew (LD)]

My noble friend tempts me to rise at this stage because there should be no misunderstandings. Does he accept that David Anderson has made it absolutely clear that he is opposed to this provision?

[Lord Paddick]

My Lords, Mr Anderson has made statements in the past in which he has supported the idea, but I accept that he also has serious concerns about it.

[Baroness Buscombe (Con)]

I am grateful to the noble Lord for giving way. I do not understand this amendment. Can he explain the point of having this board when we will already have the commissioner?

[Lord Paddick]

My Lords, at the moment we have an Independent Reviewer of Terrorism Legislation, whose job it is to look at the operation of the current legislation, as far as I understand it. This is a wider panel, whose emphasis is on looking at the civil liberties and privacy aspects. There is a subtle difference in where the independent reviewer and the panel are coming from, providing a better balance between the arguments put forward by the security agencies and an advocate for those who argue to protect civil liberties and privacy.

[Lord Brown of Eaton-under-Heywood (CB)]

Will the civil liberties to which this proposed board is to have regard and consider include—as one would hope—the civil liberties of those who are at risk if there is a terrorist outrage, or will it look at only one side of the civil liberties picture?

[Lord Paddick]

I am grateful to the noble and learned Lord for that intervention. Of course they must look at civil liberties in the round when addressing this issue.

[Baroness Manningham-Buller (CB)]

I just wonder whether the noble Lord has considered the possibility that the security and intelligence agencies may also have an interest in civil liberties. It is not one side against the other. In deciding what you go for, that is a key part of the provision.

[Lord Paddick]

I am very grateful to the noble Baroness. Yes, of course I understand that for the security agencies, at every point when they are deciding to apply for warrants or to carry out intrusive activities, civil liberties are at the forefront of their minds within the framework provided to them by the law.

I come back to the point that a form of this privacy and civil liberties board has been agreed by all sides and put into legislation, but the Government have not enacted it. This is a variation on what is already on the statute book, and something that all sides have previously considered and agreed to.

Throughout the debates on the Bill, the Government have maintained that it is world-leading legislation. I believe that it can be regarded as such only if the Privacy and Civil Liberties Board is a part of it. I beg to move.

[Lord Carlile of Berriew]

My Lords, I wonder whether we might first get what might be called “private grief” out of the way—that is, the difference between my view on this matter and that of my party’s Front Bench. If I run the risk of being accused of consistency on this, I am proud of it.

Let us start with the point that my noble friend made about the United States of America. Yes, the United States of America has the body he has described, but how effective is it? I wonder whether my noble friend has examined the Patriot Act and its consequences. It is a set of provisions that allows the American authorities to do what is unimaginable here; for example, at their own whim, to look up the credit card transactions of any citizen throughout the United States for any given period. I do not want to replicate that.

I want also to pick up on a point made very briefly but eloquently by the noble Baroness, Lady Manningham-Buller. This amendment, in my judgment, betrays a lack of confidence in the security services that is completely unjustified. Anyone who has ever looked properly at the way in which the security services have been managed, at least in recent times, or anyone who, like myself, has examined the behaviour of the security services in very difficult circumstances in Northern Ireland in recent times, will know that the management is extremely rigorous and does not need the help of an expensive and ill-conceived quango to ensure that its staff behave properly.

The risks to national security from the sloppy drafting of subsection (5) of the amendment are manifest. There is no provision here for the members of the board to be directly vetted. That means that whoever the members of the board were, they would be entitled under subsection (5)(a) of the amendment to have access to,

“all relevant material (including classified information) held by any government department or agency”.

Presumably it would be their opinion as to what was relevant. Indeed, they would be able to call as witnesses or take statements from,

“personnel of any department and agency”.

That is a provision completely unparalleled in our history.

Furthermore, this proposal usurps the powers of the Intelligence and Security Committee. There is nothing provided by the amendment that the Intelligence and Security Committee cannot at least reasonably do. The amendment clearly envisages that this will be a political board, but outside the control of Parliament, because it says that no more than three members should come from any single political party. It is a sort of freeloading, undisciplined version of the Intelligence and Security Committee, without the control of either the Executive or Parliament.

Also, it looks like a very expensive board, compared, at least, with the Independent Reviewer of Terrorism Legislation. Neither David Anderson, nor I as his predecessor, ever complained about our remuneration as independent reviewer, but it pales into insignificance by at least two noughts on the end compared with this unnecessary board.

Furthermore, such a board would duplicate not just the Intelligence and Security Committee, but all the additional provisions, some contained in welcome government amendments, that have been added to the Bill. I have been watching every detail of the Bill over its very long period of gestation. More information was given when the Bill was first tabled than on any other Bill I have ever known, including more information about the security services than we have ever seen in parliamentary papers. We will now have an independent reviewer, commissioners, judges—a whole panoply of people applying sound management and good judicial principles to the considerations that the board would vaguely look at. It is not even a civil liberties board: it is not what it says on the tin, because civil liberties are not merely connected with investigatory powers.

This proposal is a fudge and it is misleading. I apologise to my noble friends for saying so, but as I have said, I have been completely consistent about this. It is one of the worst proposals I have seen on national security that has ever been proposed to your Lordships’ House. I shall not support it, I hope that others among my noble friends will not support it, and I urge the House to reject it.

--- Later in debate ---

While I agree with noble Lords that there should be a means of assuring the public that these powers are necessary and proportionate, we have provided just that through the creation of the Investigatory Powers Commissioner. The creation of another body alongside the IPC would introduce not only unnecessary costs but also unwelcome confusion. In this context, I adopt the observations of the noble Lords, Lord Carlile of Berriew, Lord Rooker, Lord West of Spithead and Lord Campbell of Pittenweem. It is for these reasons that I hope the noble Lord will see fit to withdraw this amendment.

[Lord Paddick]

My Lords, I am very grateful to those who contributed to this debate. As far as my noble friend Lord Carlile of Berriew is concerned, I am not familiar with the Patriot Act but I know that the Privacy and Civil Liberties Oversight Board has made a significant difference in redressing the balance of some laws in the United States. Even though the noble Baroness, Lady Buscombe, spoke to members of that board and asked whether the Government must listen to it, the fact is that the Government in America did listen and acted on some of the board’s recommendations.

Clearly, these people would need to be security vetted. They will be appointed by the Secretary of State, who could impose whatever conditions she thought fit on those people.

On sloppy drafting, I am afraid it is that no more than three members of the board should be of the same political party rather than that three members should not be of any political party, which is what I think my noble friend suggested.

[Lord Harris of Haringey]

I am sorry to interrupt the noble Lord again, but could he clarify what that phrase is intended to mean? The way I, and I think my noble friend, read it is that, of a board of five, three can be of the same political party. Is the noble Lord saying that it is in the interests of civil liberties and all these other things to have a board of which three members are from the same political party—presumably the government party? Will that really then be an independent board?

[Lord Paddick]

The fact is that it is up to the Secretary of State to appoint those members to the board. One would hope that the Secretary of State would use the freedom provided by this amendment to ensure that the board is balanced. As with the noble and learned Lord, Lord Keen, I also have my brief. However, on this occasion it would be disrespectful to the House to press this amendment to a vote. Despite my brief, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

--- Later in debate ---

[Lord Prescott (Lab)]

My Lords, I intervene to support the amendment that has been moved by the noble Baroness, Lady Hollins, and supported by the noble and learned Lord, Lord Wallace. This is an issue of confidence in this place and in government. We are not seeking to change a Bill but to implement what the Government and all parties have agreed: that the Section 40 concept, which has just been discussed, should be included in this Bill. The Government have agreed the law but are not prepared to implement in statute this right to justice and financial support for people who have phone-hacking complaints against the press.

I declare an interest, as I did in relation to the Policing and Crime Bill, in that I am one of those who was hacked—46 times for my phone messages. However, the police and the Crown Prosecution Service denied it, and the Press Complaints Commission sided with the police and the prosecutor. In those circumstances, the only way I could seek any redress was to sue in the civil courts. I could not afford it, even though I have come here to the Lords—I still cannot afford it—but how else could I seek justice? We are talking about people who cannot afford to get justice in cases in which they have been offended against by phone hacking. As the noble and learned Lord, Lord Wallace, has pointed out, the Government and all parties agreed we should do this. We passed the legislation, but the Government have refused. I wait to hear what the Minister is going to say. I had hoped we were going to hear beforehand, when we met him yesterday, whether the Government’s position had changed and whether they intended to bring that element of justice into statute. I wait to hear what he has to say about that, but it is essential that we have it.

In these circumstances, doubts have constantly grown about the Government’s position. The last Secretary of State for Culture, Mr Whittingdale, actually went to a press dinner and cheered them all up by saying, “I am inclined not to do this”. Is that the Government’s position? We want to hear today whether it is still the same. We have a new Prime Minister, a new Secretary of State and a new Government—are they going to carry out what the previous Government promised in an all-party context? This debate is about the intention of the new Government. The Prime Minister said that she wanted to help weak and poorer people against the big rich ones, and by God, there is an example here. All these people who have told us time and again that they cannot afford an action are looking to us to make the adjustment and to implement the statute so that they can pursue cases.

My main concern is that we have no justice from the police or the prosecutor. They work together. I cannot call it a conspiracy, but they happened to agree that there was no evidence. But as the courts pointed out, when I took the case to them on human rights grounds, I was right: they did have the evidence, but together they conspired to not look at it or to ignore it. That is not acceptable. If that was past history, I could perhaps think that we had at least learned the lessons. But we have not. We are still not implementing this essential part, which would provide money to allow people to secure justice in our court system. If it was only that, okay, but have we not noticed the Times even this week? The press are completely ignoring most of the actual requirements under the editors’ code.

I raised the editors’ code in a previous debate. I thought I would go to the Press Complaints Commission; rather foolishly, I hoped to get some sort of judgment from among the press at least, but I could not get it. After that debate, I got letters from the Associated Press and the judge in charge of the inquiry saying my complaint, that most inquiries dealing with press complaints are dominated by the press, was wrong. However, I have checked it all out. The emphasis in the criteria is different depending on whether journalists are employed by papers and magazines or are working in TV or other areas, where suddenly the balance changes. That was my complaint. I will deal with the industry—I have been invited by the judge to come and talk to him, so I look forward to a cup of tea with him to see what he has to say—but as to whether or not these bodies are independent, including the new body, IPSO, we have to make a judgment. That came out of Leveson.

My main complaint is that part two of Leveson was meant to look at the relationship between the press and the police. There are still offences every day; today’s Daily Mail says:

“How top QC ‘buried evidence of Met bribes’”.

There are a number of such cases, such as Orgreave or the football scandal at Sheffield. There has been co-operation for a long time between the press and the police. What worries me most is another story that appeared in the Telegraph—these are not my favourite papers, as your Lordships have probably guessed—about the new body that is coming in, which is covered partly by the Bill. It says that the investigatory powers that the police will now have will allow them to monitor every phone call and every text. All this information is now going to be brought in, and seven of our police forces have already invested the money to buy it. That means they are going to get even more information.

We are told that this is to deal with terrorists and criminals—I am not going to be against that; I think we all understand that—but I am talking about the victims of their actions. Why are they not considered to deserve some justice? They are the ones who really suffer, but they do not have the money or the power to intervene. Now there is going to be more information about them; I think an earlier debate mentioned credit card information of people in America. A massive amount of information is given to public institutions that we have to have trust in but I am afraid that, given their record at the moment, even since Leveson, I have no reason to believe that the co-operation between the police and the press has stopped. Mass information is going to make the situation even more difficult.

For God’s sake, can the Government tell us what they intend to do? If they are not going to do it, why do they not tell us? Then we would know where we stand. Let the victims know; they have been promised by Prime Minister after Prime Minister, “Don’t worry, we’re going to look after you”. All parties agreed to that and passed the legislation in the other Chamber, where we have done nothing since. It is in our hands to do something. When the Minister comes to reply, I hope he can say something more fruitful than, “We’re thinking about it”. It is three years since we passed the legislation, so thinking about it just means avoiding it. Let us have a statement from the Government for the victims, not for anyone else, acknowledging that they have a right to justice when the press have abused them, whether by phone hacking or otherwise.

The victims need money to go to court, make no mistake, particularly after the Government got rid of legal aid in most areas. They have no chance. Can we in this House think of the victims? I understand that we are extending powers to try to deal with criminals and terrorism; although I have worries about them, I am prepared to accept that. But who is thinking about the victims? That is our job. The Government should get on with the statute now, not just give us, “We’re thinking about it. We’re talking about it”. They should put it in language that the victims understand, as they are the ones who need to be considered here.

[Lord Paddick]

My Lords, I declare a couple of interests, particularly in the light of the comments from the noble Lord, Lord Prescott. The first is that I was a senior police officer at Scotland Yard during that time. I was also a party to the noble Lord’s suing of the Metropolitan Police for failing to inform us that we—myself included—were victims of phone hacking, in breach of our human rights and the responsibilities that the police had to protect those rights under the Human Rights Act. As with the noble Lord, the police initially denied that I had been a victim of phone hacking, but it subsequently transpired that I had. On that basis, I should limit my remarks, but I would say to noble Lords that I went with the Dowler family to visit the three leaders of the political parties—the two leaders who were in coalition at the time and the Labour leader. To hear the family’s story about how they were impacted by the press hacking into Milly Dowler’s voicemails was tragic.

The amendment does not weaken the Bill in terms of our nation’s fight against terrorism or trying to keep people safe. It does not directly affect the law enforcement or security services. In answer to the noble Lord, Lord Henley, if the amendment was not relevant to or within the scope of the Bill, the clerks would not have allowed it to be tabled. We on these Benches will support the amendment, should the noble Baroness, Lady Hollins, divide the House.

--- Later in debate ---

While I concede that the thrust of the Bill is incredibly important for any nation state, the case for the amendments is simple and obvious. They would require merely a threshold of reasonable suspicion that a serious crime had been planned or committed and a factual basis for believing that targeted communications contained information relevant to the criminal investigation. They would reassure the public that intrusive targeted surveillance powers could be used only where there was reasonable suspicion of a serious crime. To that end, I hope that the Government will accept the amendments. I beg to move.

[Lord Paddick]

My Lords, I have sympathy for the concerns held by the noble Baroness, Lady Jones, but bearing in mind the double lock that now applies in almost all warrant applications, which would not have applied when abuses of powers happened in the past, can the Minister reassure the House that the new provisions in the Bill for independent oversight of the granting of warrants may be sufficient to obviate the need for the amendments?

[Lord Rosser]

I, too, have sympathy with many of the points made by the noble Baroness, Lady Jones. If there were to be a requirement for reasonable suspicion in addition to requiring decisions to be necessary and proportionate, because the two are not the same thing, one could envisage a situation—for example, in a kidnap case—where it could make life rather more difficult. In such a case, it might not be known whether it was a kidnap or simply a person who had gone missing.

--- Later in debate ---

[Lord West of Spithead]

My Lords, to add to that, I too am most impressed with the package the Government have come up with. It is really impressive. It shows a great willingness to compromise but does not compromise our security at all. I also pass my good wishes to the noble Earl on the 219th anniversary of his ancestor raising the siege of Gibraltar.

[Lord Paddick]

I also thank the Minister for this impressive package of amendments. It clearly has to be necessary and proportionate in some circumstances to investigate a journalist. However, I am a little concerned about a law enforcement chief being able to authorise such acquisition through equipment interference, although there is now the reassurance of a judicial commissioner, which did not exist before. I accept what the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Black of Brentwood, said about the concern of the National Union of Journalists that there should be prior notification and the ability to make representations. However, I think it is reasonably clear how difficult it would be to differentiate between the cases to which the measure would and would not apply. In all the circumstances, I think that this is more than the best that we could have hoped for. We are very grateful.

[Baroness Hayter of Kentish Town]

My Lords, I hope that my noble friend Lord Rooker has not ended the Minister’s political career. However, I think we all can say that when we come here our political careers are behind us. I join the noble Viscount, Lord Colville, the noble Lord, Lord Black, and others in thanking the Ministers and their team for the significant changes that have been made. I will not go through all of them, but the Government’s adding in Amendment 11 a reference to,

“information identifying or confirming a source of journalistic information”,

needing extra protection is very welcome, in addition to the other overriding requirement of there being no other way of getting the information.

As has been mentioned, government Amendments 30 and 31 insert special procedures for journalistic material and, perhaps of even more concern to journalists, journalists’ sources. As has just been said, the NUJ in particular wants other changes to be introduced but the idea of prior notice for covert investigation is in itself a contradiction too far. We are, however, sympathetic to the essence of the journalists’ approach—that is, their desire to protect not simply their members but whistleblowing members of the public through whom misdeeds often come to light. However, there will be occasions when terrorists or others who wish us harm will have been in touch with a journalist and the sole indication of that person’s whereabouts might exist on a journalist’s phone. Unless we are absolutely sure that we would never in any circumstances want those who protect us to be able to access that information, we need the warrants and the powers in the Bill. We hope very much that the safeguards provided will keep those exceptions to a minimum—I think that the word used was “rare”—and we hope that the IPC, in reviewing what happens, will always bear in mind the cost to all of us if fears of retribution deter good whistleblowers from getting misdeeds into the public domain. However, those are in a way fairly small instances. I commend to the House the changes that have been made.

--- Later in debate ---

[Lord Rosser]

This amendment is designed to ensure that where a warrant falls within the scope of an international agreement between the United Kingdom and a foreign Government, the requesting agency is bound to notify the receiving provider and follow the terms of the agreement, along with the authorisation, transparency and oversight requirements of the Bill, and thus establish such agreements as the primary route by which UK agencies request data from overseas operators where such agreements exist.

In its present form the Bill appears to provide UK agencies with several options to seek data from overseas providers. These include mutual legal assistance treaties, mutual legal assistance conventions, international agreements of the kind recommended by Sir Nigel Sheinwald in his report, and straightforward service of a UK warrant extraterritorially. The Bill does not direct agencies as to which power to use and under what circumstances.

What is being sought is a direction to agencies on the face of the Bill to prioritise international agreements where they exist so that they become the primary route by which UK agencies request data from overseas providers, and that this will make it more likely that these agreements will become models for other Governments. Achieving this should provide a more predictable approach for both agencies and providers and reduce the likelihood of a situation where a number of Governments claim jurisdiction over data. I beg to move.

[Lord Paddick]

My Lords, I have added my name to the amendment of the noble Lord, Lord Rosser, because we on these Benches entirely agree with it. There is a difficulty in the UK asserting unilateral power over other territories in terms of enforceability if nothing else. Clearly, if there is an international agreement, it is far better that that is used as the primary route to achieve the government agencies’ objectives than relying on a slightly dubious assertion of the UK’s power overseas. On that basis, we support the amendment.

--- Later in debate ---

[Lord Butler of Brockwell (CB)]

My Lords, Amendment 58 and others in this group are also in the names of my noble friend Lord Janvrin and the noble Marquess, Lord Lothian. Amendments 58 and 59 are in fact consequential amendments. The substance is in Amendments 195, 203, 217 and 241, the purpose of which is to introduce specific penalties for misuse of powers concerned with bulk collection of data. Amendment 195 introduces penalties for the wrongful examination of material collected under bulk interception; Amendment 203 for the wrongful examination of bulk collection of communications data; Amendment 217 for the wrongful examination of data obtained from bulk equipment interference; and Amendment 241 for the wrongful examination of datasets collected in bulk. I make it clear that I do not believe that these powers are needed to deal with current abuse of powers by the intelligence agencies, nor because I expect the agencies to abuse the powers in the Bill in the future. I know enough of the agencies to know that their standards in these matters are high.

The reason for introducing these clauses is that the Bill gives exceptional powers, and the powers in respect of bulk collection have given rise to the greatest public concern. There are already specific offences for the misuse of other powers in the Bill; for example, targeted interception and access to communications data. Penalties for the misuse of equipment interference are covered by other legislation; for example, the Computer Misuse Act. However, at present there is no specific offence on powers which cause most concern to the public—the powers for bulk collection. For misuse of these powers, reliance would have to be placed on the general purposes in the Data Protection Act, on internal discipline or on the very general offence of misconduct in public office. There is clearly an unevenness here. The misuse of information collected under bulk powers should be subject to specific penalties like the misuse of other powers in the Bill. This matter was raised in Committee and I am glad to say that the Government have listened; we are very grateful for the discussions that have taken place.

I also make clear that it is no part of my intention that members of the intelligence agencies should be inhibited in their legitimate searches by fear that they may accidentally incur these penalties. Amendments 195, 203, 217 and 241 restrict the offence to cases where persons deliberately choose to examine material which they know or believe is not authorised under the Bill, so only deliberate misuse would be caught by these provisions.

I believe that these amendments are justified and that they introduce a proper balance into the Bill. I also believe that they satisfy the intentions of the Intelligence and Security Committee of Parliament, which drew attention to this unevenness. I am very grateful to the staff of the ISC and to the government Bill team for their help in formulating the amendments. I beg to move.

[Lord Paddick]

My Lords, I support the amendments for the very reasons that the noble Lord, Lord Butler of Brockwell, has just set out. Bulk powers are exceptional powers and they raise concerns among the public. There are specific offences in other parts of the Bill and in other legislation, and now we are focusing on deliberate abuse. I echo what the noble Lord, Lord Butler, said about the integrity of the security services, but we believe that these specific offences are necessary for public reassurance, if nothing else.

[Baroness Hayter of Kentish Town]

My Lords, I was about to congratulate the noble Lord, Lord Butler, on his excellent drafting of the amendments but he has slightly given away that it was not all done by his own fair hand. However, if the look on the Minister’s face is indicating that the Government might accept the amendments, we are delighted that the noble Lord’s influence from this House seems to be keeping pace with the influence that he had in his previous occupation. We are very content to support the amendments.

Investigatory Powers Bill

Lord Paddick Excerpts

Monday 12th September 2016 Lords Chamber

[Lord Paddick (LD)]

My Lords, we have a great deal of sympathy with the amendment moved by the noble Baroness, Lady Jones of Moulsecoomb. Indeed, it is a recommendation of some committees that there be a definition of “national security”. However, we believe that the definition in the amendment is too narrow. For example, it refers to,

“force or the threat of force”,

being necessary, but sedition can take many forms, such as propaganda and the sort of activity we have seen ISIS participate in. The phrase,

“the protection of the existence of the nation”,

also seems too narrow. It would be helpful if the Government produced their own definition of “national security”, rather than leaving it completely open. Although we agree in principle with the amendment, we do not agree with its substance.

[Lord Lester of Herne Hill (LD)]

My Lords, without boring the Committee with too much about human rights, I will explain my problem with the amendment, or anything like it. The noble Earl has rightly said on the face of the Bill that he considers it to be compatible with the European Convention on Human Rights, under Section 19 of the Human Rights Act. The problem is that the Human Rights Act says—I am glad to say—that this statute, like any other, must be read and given effect, where possible, in accordance with the convention rights. Article 8 of the convention refers to national security as one of the matters to be weighed in the balance where privacy is being threatened. It is therefore very hard for Parliament to seek to give a definition that puts a gloss upon Article 8 unless it is fairly sure that it would not be struck down as being incompatible with the convention itself. As my noble friend has said, this amendment is too narrow and it would actually be better to leave the matter to be decided under the Human Rights Act—provided that the Government retreat from their foolish position of tearing up that Act and putting something else in its place. Provided they abandon that march of folly, we should leave well alone.

Investigatory Powers Bill

Lord Paddick Excerpts

Wednesday 7th September 2016 Lords Chamber

Moved by

[Lord Paddick]

194J: Clause 129, page 103, line 2, leave out from “security” to end of line 4

[Lord Paddick]

My Lords, in moving Amendment 194J in my name and that of my noble friend Lady Hamwee, I shall speak to a cornucopia of amendments—Amendments 194K and 194L, Amendments 201B and 201C, Amendments 210B and 210C and Amendment 223B. These amendments deal with the power to issue bulk interception warrants. The draconian nature of these powers is acknowledged by the fact that the Bill proposes that only the intelligence services can apply for such a warrant and that the warrant gives power only to intercept overseas-related communication and secondary data from such communications.

Clause 129(1)(b) states that the Secretary of State must be satisfied that,

“the warrant is necessary … in the interests of national security, or … on that ground and on any other grounds falling within subsection (2)”.

The essence of the first amendment is to probe why subsection (2) is also required, as it states that the,

“warrant is necessary … if it is necessary … for the purpose of preventing or detecting serious crime, or … in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.

Amendment 194J deletes subsection (1)(b)(ii) so as to restrict the issuing of bulk interception warrants to cases of national security only. It is relatively easy to envisage a scenario where terrorists are plotting attacks in the UK from a hostile foreign country where the co-operation of the telecommunications operators in that country to target individuals is not possible, and the communications of all individuals in a certain geographic area may be the only option. Can the Minister explain what would happen in a scenario where the prevention or detection of serious crime which is not a national security issue would require bulk interception of overseas data?

Amendment 201B makes similar arguments applying to Clause 146 and the power to issue bulk data acquisition warrants—for example, in Clause 146(1)(a)(i), the power to retain and store telecommunications data about every telephone call made in the UK. It is the same point applied to the other power. Amendment 210B applies the same arguments to Clause 164 and the power to issue bulk equipment interference warrants, and specifically to Clause 164(1)(b)(i), the power to hack into every mobile phone within a geographic area.

Can the Minister also explain what the difference is between the “interests of national security” and,

“the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”?

If a warrant is necessary in the interests of national security, why is it necessary to state separately that those national interests have their origins in the economic well-being of the UK? The Intelligence and Security Committee found that the distinction was unnecessarily confusing and complicated. The committee had, as far as it was concerned, failed to get a satisfactory response to its question from the intelligence agencies or the Home Office. Perhaps the Minister can have a go.

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The Bill maintains the general rule that neither the possibility of interception nor intercepted material itself play any part in legal proceedings. This preserves the requirement for “equality of arms” under Article 6 of the European Convention on Human Rights. That is why Clause 53 makes clear that a warrant could not be obtained simply to circumvent this principle. However, to answer the point made by the noble Lord, Lord Paddick, the Bill sets out in Schedule 3 a number of important and tightly drawn exceptions to the prohibition on using intercepted material in legal proceedings. These exceptions include closed material proceedings, terrorist prevention and investigation measures proceedings and terrorist asset-freezing proceedings. There will clearly be circumstances in which it is vital that an interception warrant can be issued for the purpose of gathering evidence in such proceedings on a statutory ground, including in the interests of national security. In many circumstances, this amendment would prevent such warrants being issued and could therefore have a direct impact on the security and intelligence agencies’ ability to protect the public. Therefore, it is because of the existence of the exceptions in Schedule 3 that the clause is framed in the manner it is and the prohibition is expressed in these terms. Again, I invite the noble Lord not to press this last amendment.

[Lord Paddick]

I am grateful to the noble and learned Lord for his explanations. On Amendments 194J, 201B and 210B, I accept what he said. I am grateful for the intervention of the noble Lord, Lord King of Bridgwater, and I look forward to the illustrations. While the Minister has his artistic streak going, perhaps he could also provide an example with regard to some of the other amendments, where, again, an illustration would be helpful.

[Lord Keen of Elie]

That plea to my artistic streak would require a somewhat abstract response, so perhaps the noble Lord could be a little more specific.

[Lord Paddick]

Yes, for example, with regard to the health records in Amendment 223B, I did not find the example of criminals engaged in manufacturing drugs an exceptional and compelling circumstance. Perhaps there is a better example than that. The absolutely intrusive nature of health records and the acknowledgement of that by way of the exceptional notification that the intelligence services do not hold any bulk personal datasets of health records tend to reinforce the argument that access to them should be restricted to national security grounds. I would be grateful if a more compelling example could be thought of, although obviously not at the moment.

[Lord Keen of Elie]

I will be quite content to formulate and intimate a more compelling example.

[Lord Paddick]

I am grateful. On Amendment 194L and a warrant issued only for the purpose of gathering evidence for use in legal proceedings, I will have to read carefully what the Minister said, as I came to completely the opposite conclusion to the one he gave. However, at this time I beg leave to withdraw the amendment.

Amendment 194J withdrawn.

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Moved by

[Lord Paddick]

194M: Clause 130, page 104, line 11, after “requirement,” insert—
“( ) the domestic law of the operator’s place of business,”

[Lord Paddick]

My Lords, Amendment 194M stands in my name and that of my noble friend Lady Hamwee. I shall also speak to our Amendment 194N in this group.

Clause 130 relates to the additional requirements in respect of warrants affecting overseas operators giving assistance to UK intelligence agencies to enable bulk interception. Subsection (3) lists matters that the Secretary of State must take into account before issuing a warrant that requires an overseas operator to give assistance. We believe that an important omission to this list is,

“the domestic law of the operator’s place of business”—

that is, that the Secretary of State should not require overseas operators to break the law in the country where the request for assistance is being made.

As far as Amendment 194N is concerned, Clause 131 refers to the approval of bulk interception warrants by judicial commissioners. Subsection (1) states that a judicial commissioner must review the Secretary of State’s conclusions as to the granting of the warrant. Our amendment suggests that this should go further and that both the Secretary of State’s reasoning and their conclusions should be considered.

In previous sessions of this Committee, we heard the view that the judiciary should not make decisions on the issuing of warrants—that is for politicians to decide—but simply review the decisions. But if the judicial commissioner has to decide whether to “approve a decision” and indeed decides not to approve a decision of the Secretary of State, surely the judicial commissioner has made a decision on the issuing of a warrant. Surely a judicial commissioner should review the reasoning behind the Secretary of State’s decision and not simply the conclusion. Without knowing the reasons why the Secretary of State came to their conclusion, how can a judicial commissioner decide whether the conclusion is valid? I beg to move.

[Lord Keen of Elie]

My Lords, these amendments relate to a judicial commissioner’s consideration of a bulk warrant that is to be served on an overseas provider and what the commissioner is required to take into account when considering the Secretary of State’s decision to issue a bulk warrant. There is also a government amendment in this group which is technical in nature, and I shall address that in a moment.

Amendment 194M seeks to insert a requirement that, where an overseas telecommunications operator is likely to be required to provide assistance in giving effect to a bulk interception warrant, the Secretary of State must—before the warrant is issued—take into account the domestic law of the operator’s place of business.

I suggest that this amendment is not necessary. The Bill already provides, at Clause 139(5), that Clause 41, which deals with the duty of operators to assist with implementation, applies in relation to a bulk interception warrant in the same way as it applies to a targeted warrant. Clause 41 makes it absolutely clear that a telecommunications operator may be required only to take “reasonably practicable” steps to give effect to a warrant. It also makes clear, at subsection (5), that for an overseas operator consideration must be given to the law of the relevant country and the extent to which it is reasonably practicable to give effect to the warrant without breaching it. So I suggest that this amendment is not necessary and, in these circumstances, I invite the noble Lord to withdraw it.

Amendment 194N seeks to alter the test that a judicial commissioner applies when considering whether to approve a decision to issue a bulk interception warrant. This topic has been the subject of intense scrutiny by three committees, the other House and, in the context of the targeted powers within the Bill, this House. As a result of that debate, the Government have already made considerable amendments to the Bill.

This amendment would require the judicial commissioner to consider the reasons given for the decision to issue a bulk interception warrant. The amendment is, I think, 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 he or she agrees, the Secretary of State will issue the warrant. He or she does not have to give reasons for that decision beyond confirming that he or she personally considers that the warrant is necessary and proportionate.

The judicial commissioner will then review the Secretary of State’s decision based on the evidence that was 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, he or she will refuse to approve the decision. In these circumstances, there are no reasons per se to be reviewed by the judicial commissioner. Given that, and given the progress that has already been made on this issue, I invite the noble Lord not to press this amendment.

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These matters will have been taken into account by the Secretary of State at the point when the decision was taken to issue the warrant in the first instance. They are not matters that are relevant in the case of a renewal, where the operator concerned will already have been providing assistance in giving effect to the relevant warrant. They are therefore not matters that the Bill requires the Secretary of State to take into account when deciding whether to renew a bulk interception warrant. The amendment simply makes it clear that a judicial commissioner is therefore also not required to consider them when deciding whether to approve the decision about renewal.

[Lord Paddick]

Again, I am very grateful to the noble and learned Lord for his explanation and for joining the dots, if I may describe it like that, of the relevant parts of the legislation regarding targeted interception warrants. I accept the explanation and indeed the safeguards regarding overseas operators and their need to comply with domestic law, in addition to the assistance being practicable.

I am genuinely grateful for the explanation regarding Amendment 194N. I now understand that reasons would not be given by the Secretary of State; it is more a re-examination of the case made by the security services, for example, and the judgment by the judicial commissioner as to whether the issuing of a warrant is necessary and proportionate. On that basis, I beg leave to withdraw the amendment.

Amendment 194M withdrawn.

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[Earl Howe]

My Lords, I shall speak also to Amendments 198, 207, 208, 213, 214, 227, 228 and 223, all of which relate to operational purposes on bulk warrants.

The amendments tabled by the Government add significant detail to the provisions in the Bill on operational purposes—that is, the purposes for which data collected under a bulk warrant may be selected for examination. Operational purposes are an important new safeguard and we are committed to ensuring that the Bill includes as much detail as possible about how they will operate in practice. These amendments respond to amendments tabled in the House of Commons by the Intelligence and Security Committee, and they address concerns raised during the Committee stage in the Commons that operational purposes could be “general”.

The amendments would do a number of key things. They would create a requirement that the heads of the intelligence services must maintain a list of all operational purposes. The maintenance of this list would ensure that the security and intelligence agencies are able to assess and review all the operational purposes that are, or could be, specified across the full range of their bulk warrants at a particular time. This would ensure that these purposes remain up to date and relevant to the current threat picture, better enabling the agencies to identify warrants that need to be modified, adding or removing operational purposes. The maintenance of the central list would also make sure that the Investigatory Powers Commissioner is able to oversee, in one place, the full range of purposes for which a bulk warrant could authorise the examination of material.

The amendments would apply robust controls to the addition of an operational purpose to the central list, requiring that any such addition must be approved by the Secretary of State. They make clear that the Secretary of State may approve the addition of an operational purpose to that list only if satisfied that it contains more detail than the statutory grounds on which the warrant was issued, such as in the interests of national security.

The amendments would also enhance the oversight and transparency of the use of operational purposes. As well as the rigorous independent oversight that the Investigatory Powers Commissioner will apply to the exercise of bulk powers, these amendments would also require the following: that the list of operational purposes must be reviewed annually by the Prime Minister; that the list must be provided to the Intelligence and Security Committee every three months; and that the Investigatory Powers Commissioner must publish a summary of the use of operational purposes in each of his or her annual reports.

The amendments would also take out references in the Bill to operational purposes being able to be “general purposes”. This provision was inserted in the Bill to ensure that operational purposes do not have to be drawn so tightly that they are operationally unworkable. While it has never been the case that this language meant operational purposes could be vague or lacking in detail, the Government have listened to concerns that this language could be misinterpreted and that is why these amendments would remove it.

These amendments would significantly enhance the Bill’s provisions on operational purposes, adding absolute clarity as to how this important safeguard will operate in practice. I hope that the Committee will approve them. I beg to move.

[Lord Paddick]

My Lords, I am very grateful to the Minister for those amendments. They bring a significant improvement to the Bill and are extremely welcome. We were faced previously with the situation in which operational purposes were to be part of the Bill but we would never know what those operational purposes were. I appreciate that they are not going to become public knowledge, but at least we will now have a review by the Intelligence and Security Committee every three months and the annual review by the Prime Minister as well. Removal of the term “general” is greatly reassuring and we wholeheartedly support these amendments.

[Lord Rosser]

My Lords, we hold a similar view to that which has just been expressed by the noble Lord, Lord Paddick. These amendments seek to pursue a matter that has been raised by the ISC and accordingly raised during the Commons stages of this Bill. I think that these amendments address the concerns raised by the ISC—I certainly have not heard anything to the contrary—and we share the view that, in doing so, they enhance the Bill.

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Moved by

[Lord Paddick]

201ZA: Clause 136, page 107, line 21, at end insert—
“( ) The persons mentioned in subsection (7) must keep under review whether any operational purpose specified in a warrant remains a purpose for which the examination of intercepted or secondary data obtained under the warrant is or may be necessary.”

[Lord Paddick]

My Lords, I beg to move Amendment 201ZA and to speak, I am afraid, to another cornucopia of amendments in this group: Amendments 201ZB, 201ZC, 201ZJ, 210ZB, 210ZC, 217A, 217B, 217C, 231ZA and 231ZB.

Clause 136(9) requires the Secretary of State, or the senior official acting on the Secretary of State’s behalf, to modify the warrant if an operational purpose,

“is no longer a purpose for which the examination of intercepted content or secondary data obtained under the warrant is or may be necessary”.

The question is: how will the Secretary of State or the official know that there has been such a change requiring the warrant to be modified unless the situation is kept under review? Our Amendment 201ZA requires the Secretary of State, or a senior official acting on behalf of the Secretary of State, to,

“keep under review whether any operational purpose specified in a warrant remains a purpose for which the examination of intercepted or secondary data obtained under the warrant is or may be necessary”.

Amendment 217A makes the same point in relation to bulk equipment interference warrants, as dealt with in Clause 172. Amendment 210ZB makes the same point in relation to bulk acquisition warrants, as dealt with in Clause 152. Amendment 231ZA makes the same point in relation to bulk personal dataset warrants, as dealt with in Clause 192.

I turn now to Amendment 201ZB. Clause 138(3) allows the Secretary of State, or a senior official acting on behalf of the Secretary of State, to cancel a warrant if, for example, the examination of the content or secondary data obtained under the warrant is no longer necessary for any of the specified operational purposes. Clause 136(9) requires the modification of a warrant by the Secretary of State, or a senior official, if they consider that,

“any operational purpose … is no longer a purpose for which the examination of intercepted content or secondary data obtained under the warrant is or may be necessary”.

But how will the Secretary of State know that, and, therefore, how will the Secretary of State know that the warrant should be cancelled?

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[Earl Howe]

My Lords, Amendments 201ZA, 210ZB, 217A and 231ZA seek to insert a provision into the clauses that enable the modification of bulk interception, acquisition, equipment interference or bulk personal dataset warrants. The amendments would require that persons who can make a minor modification to remove an operational purpose from a warrant must keep under review the operational purposes on each bulk warrant. The intended effect of these amendments, as I understand it, is that such persons will be aware when one of those purposes is no longer necessary and can remove it from the warrant.

These amendments are not necessary because the relevant draft codes of practice, which were published when the Bill was introduced to Parliament, already make clear that the security and intelligence agencies must keep bulk warrants under ongoing review. In addition, the draft codes set out specific requirements in relation to operational purposes. This includes a requirement that the security and intelligence agencies will need to ensure that bulk warrants are relevant to the current threat picture and will therefore need to identify operational purposes that need to be added to or removed from bulk warrants.

Further to the requirements in the draft codes, the government amendments, as I explained earlier, would create a requirement in the Bill that the heads of the intelligence services must maintain a list of all operational purposes. I set out the rationale and utility of that list in the preceding group of amendments. The provisions in the Bill and the detailed requirements set out in the draft codes of practice already make clear that the operational purposes on any bulk warrant will be kept under review. This will ensure that where an operational purpose is no longer necessary on a particular warrant it can be identified and removed. I hope the noble Lord will feel able to withdraw these amendments.

Amendments 201ZB, 210ZC, 217B and 231ZB make a modification to remove an operational purpose from a bulk warrant a major modification. Currently, a modification removing an operational purpose is a minor modification, meaning that it may be made by a Secretary of State or a senior official acting on their behalf. This amendment intends that such a modification would instead be subject to the double lock and must therefore be made by a Secretary of State and approved by a judicial commissioner before taking effect. That would be entirely unnecessary. A modification removing an operational purpose from a bulk warrant reduces the scope of the conduct that the warrant authorises, conduct that will already have been approved by the Secretary of State and a judicial commissioner. Subjecting such a modification to the double lock is superfluous. Accordingly, I invite the noble Lord to withdraw these amendments.

Amendments 201ZC and 217C relate to the modification of bulk warrants for the purpose of allowing examination of material after acquisition has ceased. These amendments would remove important technical provisions from the Bill. The Bill enables a bulk interception or bulk equipment interference warrant to be modified such that it no longer authorises the acquisition of any material but continues to authorise the selection of material for examination. This provision caters for limited circumstances where it may no longer be necessary or possible to continue the collection of data, such as where a communications service provider who is providing assistance in giving effect to the warrant goes out of business but where the data collected up to that point remain pertinent. In such circumstances, it may continue to be necessary and proportionate to examine data that have already been collected under the warrant.

The subsections that these amendments would remove simply clarify that a warrant that has been modified in this way remains a valid bulk warrant in spite of the provisions in Clauses 127(2) and 162(1). This is necessary because these clauses state that one of the conditions of the warrant is that its main purpose is to acquire data, but, of course, a warrant that has been modified in the manner I have described will no longer meet this condition, given that it will no longer authorise the collection of data. I hope the noble Lord will agree that these provisions are necessary and recognise that they serve only to reduce the activity that would have been authorised by the original unmodified warrant.

On Amendment 201ZJ, Clause 142 prohibits the selection for examination of intercepted content using criteria referable to an individual known to be in the British Islands, except where a targeted examination warrant—subject to the double lock—has been issued. I hope it is helpful if I draw the noble Lord’s attention to Clause 142(5), because there is one additional exception to this prohibition. That subsection addresses cases where there is a change of circumstances such that a person whose content is being selected for examination enters, or is discovered to be in, the British Islands. The subsection provides that selection for examination may continue in these circumstances for five working days with the approval of a senior official. This is vital to cater for circumstances such as where a member of an organised crime group travels into the British Islands. Any selection for examination after the five-day period will require the issuing of a targeted examination warrant.

I hope and believe that that explanation addresses the query the noble Lord, Lord Paddick, put to me. I understand his amendment as intended to capture the set of circumstances I just outlined, but it would also lead to a diminution in safeguards, given that it would enable selection for examination to continue for what I would judge to be an unnecessarily long period—in the absence of a targeted examination warrant—where there is a change of circumstances and someone has entered or is discovered to be in the UK. I hope that explanation will allow the noble Lord to feel comfortable in not pressing this amendment.

[Lord Paddick]

I am very grateful to the noble Earl for those explanations. Regarding Amendments 201ZA and that group, I am still concerned that the Minister or senior official is reliant on the security services flagging up to them that they need to withdraw operational purpose or even cancel a warrant. It is trusting the head of the intelligence services to flag that up. I will read very carefully what the noble Earl said about that.

I am grateful for his confirmation of when a bulk interception warrant is not a bulk interception warrant but still is. The only difference between us was that I asked whether it was right that analysis needs to continue after content is not being added to, whereas the correct term was “examination” continues. I think we are on all fours as far as that is concerned.

On Amendment 201ZJ, I accept that if there is a change in circumstances, whether a foreign terrorist or a foreign criminal arrives in the UK, the switch is not immediately flipped in that a five-day grace period is provided by Clause 142(5) for that content to continue to be allowed to be selected, even though the person is in the British Islands. However, it seems an unnecessary hurdle for the security services to have to apply for a targeted examination warrant in those circumstances, if it is a known terrorist coming into the UK. Presumably the five days are simply to allow enough time for a targeted examination warrant to be applied for, but I illiberally suggest that that is unnecessary bureaucracy for the security and intelligence services to go through. However, if the Government, the Home Office and others are content for the intelligence and security services to jump through that particular hoop, who am I to argue? On that basis, I beg leave to withdraw the amendment.

Amendment 201ZA withdrawn.

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Moved by

[Lord Paddick]

201ZD: Clause 137, page 108, line 12, leave out “fifth” and insert “third”

[Lord Paddick]

My Lords, I apologise; it is me again. In moving Amendment 201ZD in my name and that of my noble friend Lady Hamwee I shall speak to our Amendments 210ZD, 217D and 231ZC.

Clause 137 is about the approval of major modifications made in urgent cases to bulk interception warrants. These urgent requests for modification will be made by the Secretary of State alone. The judicial commissioner must approve any urgent change within a period ending with the fifth working day after the day on which the modification is made. Elsewhere in the Bill, the relevant period within which an urgent request for a warrant that has, for example, been granted by the Secretary of State alone and has then to be approved by a judicial commissioner—for example, in the case of the approval of interception warrants in urgent cases under Clause 24(3)—is the period ending with the third working day after the day on which the warrant was issued.

Our Amendment 201ZD would restore consistency to post-event approval of decisions by the Secretary of State in urgent cases by changing the relevant period within which judicial commissioner approval is needed in urgent cases of modification from five days to three days. Our Amendment 210ZD makes the same point relating to the urgent modification of bulk acquisition warrants in Clause 153; Amendment 217D to the urgent modification of bulk equipment interference warrants in Clause 173; and Amendment 231ZC to the urgent modification of bulk personal dataset warrants in Clause 196.

Will the Minister explain why, in the case of urgent major modifications of bulk interception warrants, the relevant period for judicial commissioner approval is five days and everywhere else in the Bill approval of urgent decisions is three days? I beg to move.

[Lord Keen of Elie]

My Lords, while we must ensure that judicial commissioners have sufficient time to scrutinise effectively the decisions of the Secretary of State, I am sympathetic to these amendments. Indeed, the Government have already amended the Bill such that when an urgent targeted warrant is issued the judicial commissioner must approve the decision to issue it within three working days, as opposed to five. On this basis, I am happy to commit to take away the amendment for further consideration and accordingly I invite the noble Lord to withdraw it.

[Lord Paddick]

I am very grateful to the noble and learned Lord for his encouraging words and on that basis I beg leave to withdraw the amendment.

Amendment 201ZD withdrawn.

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[Lord Rosser]

We are rather assuming that the Government will oppose the amendments, just as we— wrongly—assumed they would oppose the previous group. If they oppose them, we will certainly want to listen to the strength, or otherwise, of their argument, unless they are going to indicate that, in view of the pressure from around the Committee, they will take this issue away and reflect further on it.

A fairly strong argument has been made for being able to take the kind of action envisaged in the amendments. I do not know whether the Government want to argue that getting a conviction might well have to involve the disclosure of, or some information about, sensitive material that is not in the public domain. However, we certainly wish to hear the strength or otherwise of the Government’s objection to these amendments.

[Lord Paddick]

I want briefly to add our support for the amendments tabled by the noble Lord, Lord Butler of Brockwell, and for his compelling arguments. I have never previously had contact with the security services but, in preparation for this Bill, I visited various places where they operate, and I am convinced that it is not simply a question of the high esteem in which James Bond is held: the perceived integrity of the people who work in the security services is a function of reality. These offences are of far more benefit to the public in reassuring them that, in the extraordinary circumstance that they were committed, such offences do indeed exist, rather than their being demonstrably necessary based on experience because the security services operate in this criminal way.

However, as the noble Lord, Lord Butler of Brockwell, has said, it is something of an anomaly that there is no serious criminal sanction for an abuse of the bulk powers provided by the Bill, yet there are significant criminal sanctions in relation to all the other powers. On that basis, I very much support these amendments.

[Lord Keen of Elie]

My Lords, I am conscious of the strength of feeling that has been expressed about this matter, but let me make it clear that we do not accept that there is what was termed “a gap” in the criminal sanctions with respect to bulk powers. This matter was discussed during earlier Committee sittings, as the noble Lord, Lord Butler of Brockwell, observed, under reference to Amendment 15, which proposed a new offence of unlawful use of investigatory powers. I understand the development that has taken place and the context of the amendments that have now been spoken to. On that earlier occasion, I referred to the civil penalties and criminal offences that apply in respect of the misuse of the powers in the Bill. In particular, I pointed out that a whole series of statutory offences is listed under Clause 1. But over and above that, it is important to bear in mind the availability of the offence of misconduct in public office, which is also referred to. I underline that because that offence would apply to instances of misuse of bulk powers in appropriate circumstances, and would certainly embrace circumstances in which there was a knowing or reckless misuse of such powers.

I also note in passing that, only two days ago, the Law Commission issued a consultation document entitled Reforming Misconduct in Public Office so that the matter could go out for further consideration. The Law Commission highlighted that the problem is that, often, there are overlapping offences which obscure the use of the offence of misconduct in public office. I rather fear that the introduction of a further statutory offence would simply create a further overlap with regard to such offences. We are at an early stage. The Law Commission has only just introduced that consultation document, but we will take account of it in this context. Although I quite understand the point that was raised by the noble Lord, Lord Butler, and indeed the ISC, in this context, we consider that misconduct in public office is available to deal with the instances that have been referred to.

Before the summer, in response to Amendment 15, we referred to the “inadvertent operational impact” that the creation of further statutory offences could have. The officers working within our intelligence agencies are entirely committed to the mission of keeping the country safe. They are professional and ethical in the way they conduct their work. We recognise the concerns raised about the potential misuse of investigatory powers but, as I say, the creation of new offences may unnecessarily inhibit agency staff and limit their ability to operate with confidence. We do not disagree that intelligence officers who are exercising these most sensitive and, indeed, intrusive powers should consider their actions carefully before using them, but we have seen no evidence that the dedicated men and women of our security and intelligence agencies give such matters anything less than the most careful consideration.

While deliberate misuse of these data can already incur criminal liability—indeed, we suggest that reckless misuse would be sufficient—the creation of a new offence would send a powerful and potentially damaging message to the men and women of our intelligence services. It may be taken to imply that more is required of them than is already the case and that innocent mistakes will in future result in criminal prosecution; for example, if they are construed as the product of reckless behaviour. I appreciate that it is not the noble Lord’s intention that this should occur but we must consider not just the letter of the law but what it will be taken to mean by those on the front line. There is a real risk that this amendment, if accepted, would suggest that they are not trusted to do their jobs, and that it could foster a culture of risk aversion in the agencies at a time when they are dealing with complex and evolving threats. That is certainly the concern expressed by the heads of the intelligence agencies, which I know they have communicated directly to members of the Intelligence and Security Committee.

The Government are clear that if anyone in a public authority were to act contrary to their obligations under the Bill, the matter would be taken extremely seriously. The current commissioners already ensure that they investigate and report publicly on the very infrequent cases of errors that involve serious misuse. These matters are brought into the public domain. In appropriate cases disciplinary action may be taken, up to and including dismissal, or civil or criminal liability incurred. The extent of that criminal liability will be determined by the prosecution deciding what form of offence should be prosecuted, at what level and, indeed, at what level of court for the purposes of penalty. Although misuse is exceedingly rare, intelligence agency staff are conscious of their obligations; indeed, from time to time they have been dismissed for misusing systems.

When these points are considered together, I hope noble Lords will agree that this puts beyond doubt the severe penalties that would apply in the event of deliberate wrongdoing by a member of a public authority—or, indeed, reckless behaviour. We therefore suggest that new criminal offences are unnecessary and potentially confusing, and, on the face of it, would adversely affect the operation of the agencies. In these circumstances, I invite the noble Lord to withdraw his amendment.

[Lord Paddick]

If the Government are concerned about overlapping criminal offences, particularly the overlap with misconduct in a public office, why in Clause 56 have they created a new offence of making unauthorised disclosures? That seems to completely contradict the argument that the Minister has just offered the Committee.

[Lord Keen of Elie]

I do not for a moment accept that it contradicts the argument. The objective is to ensure that we minimise any overlap in the context of such criminal offences.

--- Later in debate ---

Moved by

[Lord Paddick]

203A: Clause 146, page 115, line 34, after “obtaining” insert “and excluding third party data not already in the possession of the operator”

[Lord Paddick]

My Lords, Amendment 203A is in my name and that of my noble friend Lady Hamwee. I shall also speak to Amendments 204A, 204B, 210ZE and 210ZF, which are in this group.

Our Amendment 203A seeks to put into the Bill that a bulk acquisition warrant will not include obtaining third-party data not already in the possession of the operator. We have debated a similar point before and the Minister addressed third-party data in his letter to the noble Lord, Lord Rosser, on 27 July this year. However, can the Minister elaborate on the position of third-party data in relation to bulk acquisition?

Amendment 204A seeks to get it on the record that Clause 146(7), by allowing the warrant to cover,

“data whether or not in existence at the time of the issuing of the warrant”,

does not allow for speculative surveillance without suspicion.

Amendment 204B would put into the Bill that,

“A bulk acquisition warrant may not require data which relates to or includes internet connection records”.

This was touched on in our opening debate this afternoon on the Anderson review. In footnote 85 on page 33 of his report, Anderson states:

“A ‘Bulk Communications Data’ factsheet published with the draft Bill on 4 November 2015 stated ‘The data does not include internet connection records …’. I am told however that this is no more than a statement of present practice and intention: neither the Bill nor the draft Code of Practice rules out the future use of the bulk acquisition power in relation to ICRs”.

The Committee will recall that we on these Benches oppose the storage of the internet connection records of every man, woman and child in the UK for 12 months, whether suspected of an offence or not, by internet service providers as required by the previous provisions of the Bill. We believe this to be a disproportionate intrusion into privacy, for the reasons that I have already explained at length to the Committee. Law enforcement agencies would, however, be able to access such internet connection records only if someone was suspected of an offence. The Government have introduced additional safeguards in the Bill to specify what sorts of offences would warrant such intrusion, but without this amendment it is open to the Government in the future to allow law enforcement agencies to store and have access to internet connection records. We believe that this is two steps too far.

As far as Amendment 210ZE is concerned, Clause 157 refers to the “Duty of operators to assist with implementation” of bulk acquisition warrants. This amendment seeks to clarify that the person to whom the warrant is issued—the implementing authority—cannot be held liable for a breach of the warrant because of the actions of the operator.

Amendment 210ZF seeks to ensure that, under Clause 158, “Safeguards relating to the retention and disclosure of data”, if internet connection records were subsequently stored, no such record could be disclosed unless the individual concerned was suspected of having committed an offence. I beg to move.

[Lord Keen of Elie]

My Lords, I agree with the noble Lord’s intention in Amendment 204 to ensure that communications data can be acquired in bulk and analysed in real time. Indeed, the Bill already permits this. I draw attention to Clause 146(5) and 146(6), which provide for such a scenario as he suggests in this amendment. These subsections specify the conduct which must be described in the warrant and any conduct that it is necessary to undertake to do what the warrant expressly requires. If it was therefore necessary to obtain bulk communications data in real time, these provisions would allow it.

[Lord Keen of Elie]

I had understood that the noble Lord, Lord Paddick, also referred to Amendment 204 but if he did not, I apologise.

I turn then to Amendment 203A, which seeks to exclude the ability for a bulk acquisition warrant to require a communication service provider to obtain third-party data where it is not already in its possession. I do believe that the noble Lord referred to that.

[Lord Paddick]

I did.

[Lord Keen of Elie]

It will be recalled that the issue of third-party data was discussed during the last Committee session before the Summer Recess, when my noble friend Lord Howe explained that it is absolutely right that where a communication service provider holds or is able to obtain communications data, whether in relation to its own services or those provided by a third party, the data should be available to be acquired under the Bill. Put simply, data that already exist and are held or can reasonably be obtained which could save a life, convict a criminal, prevent a terrorist attack or provide an alibi should not be put out of the reach of law enforcement. The point we would make clear is this: a bulk warrant can require a communication service provider to obtain and disclose third-party data only where it is necessary and proportionate to do so, and where approved by a judicial commissioner. The provider is required to comply with a request to provide communications data in bulk, including third-party data, only where it is reasonably practicable for it to do so. Given these safeguards, I suggest that any further restriction on obtaining third-party data would not be appropriate.

This is of course a separate matter from the retention of third-party data, where the Prime Minister gave a clear commitment when she was Home Secretary that we will not require a telecommunications operator to retain third-party data. We are working on provisions to address that matter in the Bill.

We understand that the purpose of Amendment 204A is to limit the bulk acquisition of communications data to those which are held by the communication service provider only on the day that a warrant is served. The noble Lord, Lord Paddick, indicates otherwise.

[Lord Paddick]

If I can assist the noble and learned Lord, Amendment 204A is to probe and seek reassurance on the record that this is not simply to allow speculative surveillance without suspicion. I accept that a warrant has to authorise the acquisition of an ongoing stream of content but this would just assure the Committee that it does not mean speculative surveillance without suspicion.

[Lord Keen of Elie]

I do not think that there is any suggestion that it would involve speculative surveillance without suspicion but, technically, we should not require the agencies to make repeated applications for a warrant in order to maintain their access to such material. I hope that reassures the noble Lord, and I shall therefore move on. Perhaps I had misunderstood the extent of the noble Lord’s amendment, but there would be an unnecessary workload on the agencies if they had repeatedly to apply for warrants in this context. However, I am sure that that was never the noble Lord’s intention.

Amendment 210ZE seeks to ensure that the authority implementing a bulk acquisition warrant cannot be liable for a breach of that warrant as a result of an act or omission by the communications service provider on which it has served the warrant. The Bill outlines errors that must be reported to the Investigatory Powers Commissioner, and the draft Bulk Acquisition Code of Practice provides additional detail on error reporting processes. The code draws distinctions between errors made by the requesting agency and those made by a communications service provider on which the warrant is served. We believe it is clear that anyone implementing a warrant is responsible for any error they, and they alone, make, and that they are not responsible for any error made by anyone else. Therefore this amendment is unnecessary.

Amendments 210ZF and 204B would add to the current list of reasons for which it may be necessary to disclose or copy communications data obtained under a bulk acquisition warrant. Such disclosure and copying must, of course, be kept to the minimum necessary for a limited number of purposes. The amendment adds, in the case of internet connection records, a requirement of necessity in respect of an individual having committed an offence.

In tabling amendment 210ZF, I understand the noble Lord is seeking to understand whether a bulk acquisition warrant could require a communications service provider to provide internet connection records in bulk. The Government have been clear that one of the aims of the Bill is to provide technology-neutral legislation—a point referred to earlier by my noble friend Lord Howe—to take into account future changes in the way that we communicate. While we have been clear that internet connection records are not currently acquired in bulk, it is of course worth being clear that current legislation would allow the agencies to acquire internet connection records in bulk, where necessary and proportionate to do so.

I can confirm to the Committee that the agencies do not currently acquire internet connection records in bulk and have no current intention to do so. It is, however, important to ensure that we do not legislate against the possibility of internet connection records being acquired in bulk, should the agencies make a case which demonstrates that this might be necessary and proportionate in the interests of national security in the future.

We strongly believe that it is right that the intelligence agencies have the power to acquire communications data in bulk. Indeed, David Anderson, in his recent review of the utility of the bulk powers within the Bill, said:

“Bulk acquisition has been demonstrated to be crucial in a variety of fields”,

and that,

“bulk acquisition has contributed significantly to the disruption of terrorist operations and, through that disruption, almost certainly the saving of lives”.

Clause 158, which this amendment seeks to alter, outlines the safeguards relating to the acquisition of communications data under a bulk warrant. Any application to obtain communications data in bulk is subject to the strongest of the safeguards in the Bill, which we have discussed at length in relation to other provisions. A warrant to acquire communications data in bulk must be both necessary and proportionate for the interests of national security, must specify the operational purposes, which are the only reasons the data can be selected for examination, and will be subject to the double lock of Secretary of State and judicial commissioner approval.

It is in this context and in the context of these very strong safeguards that we think it right, as is currently the case, that the bulk acquisition power should remain technologically neutral, with the safeguards applying equally to all types of communications data defined by the Bill.

As David Anderson recommends in his report, the Government will also keep the bulk acquisition power under review in order to ensure that it remains necessary and proportionate alongside any other mechanisms which might be developed, such as the request filter. Taking into account the fact that the agencies require such clear authorisation from both the Secretary of State and the judicial commissioner, should they ever consider it necessary and proportionate and in the interests of national security to proceed with such bulk acquisition, I suggest that this amendment is unnecessary and I invite the noble Lord to withdraw it.

[Lord Paddick]

I am grateful to the noble and learned Lord for his explanation. As far as Amendment 204B and the potential for bulk acquisition of internet connection records are concerned, it is, to us, a rather alarming prospect which I do not think has yet been raised in the public consciousness. It is absolutely certain that we will return to this issue on Report. At this stage, I beg leave to withdraw the amendment.

Amendment 203A withdrawn.

Investigatory Powers Bill

Lord Paddick Excerpts

Wednesday 7th September 2016 Lords Chamber

Moved by

[Lord Paddick]

212A: Clause 167, page 129, line 10, at end insert “and is reported to the Judicial Commissioner”

[Lord Paddick]

My Lords, I rise to move Amendment 212A standing in my name and that of my noble friend Lady Hamwee. Clause 167 deals with the situation in which a judicial commissioner fails to approve a decision to issue a bulk interference warrant in urgent cases. When this happens, under Clause 167(2) the person to whom the warrant is addressed,

“must, so far as is reasonably practicable, secure that anything in the process of being done under the warrant stops as soon as possible”.

Our Amendment 212A adds a requirement that the actions taken to stop activity under the warrant are reported back to the judicial commissioner to confirm that his decision has been complied with. I beg to move.

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

My Lords, as the noble Lord, Lord Paddick, has indicated, Amendment 212A seeks to mandate that in the event that a bulk equipment interference warrant is issued in an urgent case and the judicial commissioner later refuses to approve the decision to issue the warrant, the relevant security and intelligence agency must report any activity carried out under that warrant and any steps being taken to stop the activity to the judicial commissioner.

This amendment is not necessary. Clause 167(4) grants the judicial commissioner the power to require representations where they have refused to approve the decision to issue a bulk equipment interference warrant which was issued urgently. Under this provision, security and intelligence agencies may be required to set out what material has been acquired under the warrant as well as other details of the interference, and it will be for the judicial commissioner to determine exactly what information they require to make their decisions on a case-by-case basis. This provision as drafted ensures that the commissioners will have all the necessary information to determine how material should be handled and if any further interference is required to stop the activity. Therefore there is a reporting function in order that the judicial commissioner can make the appropriate directions under Clause 167(3).

In these circumstances, I invite the noble Lord to withdraw the amendment.

[Lord Paddick]

I am grateful to the noble and learned Lord for that explanation. I will carefully consider his response and look at the Bill, but at this stage I beg leave to withdraw the amendment.

Amendment 212A withdrawn.

--- Later in debate ---

Amendment 226 is separate to these amendments. It is a minor technical amendment to bring the drafting of Clause 189 into line with wording in other equivalent provisions in the Bill. I commend that amendment to the Committee. I beg to move.

[Lord Paddick]

My Lords, I will speak to our Amendments 218A, 218B, 219A, 223A and 223D, and question whether Clauses 185 and 186 should stand part of the Bill. The purpose of Amendments 218A and 218B, and of the question whether Clauses 185 and 186 should stand part of the Bill, is to ensure that each bulk personal dataset is separately authorised by the Secretary of State and a judicial commissioner, and to exclude class bulk personal dataset warrants. It is our intention not to disallow specific bulk dataset warrants, but to remove class bulk personal dataset warrants from the Bill.

Both the Joint Committee on the Bill and the Intelligence and Security Committee recommended that class bulk personal datasets should be removed from the Bill, yet they remain part of it. The Intelligence and Security Committee reported that the acquisition, retention and examination of any bulk personal dataset is sufficiently intrusive that it should require a specific warrant. I accept what the noble Earl said on working with the ISC to try to meet it half way by adding these additional safeguards, but we maintain that it still does not go far enough, because bulk personal datasets containing private information on a large number of people are of no relevant or legitimate interest to the agencies.

I appreciate that the amendments we have proposed do not make every amendment necessary to completely remove the provision of class bulk personal datasets from the Bill, but at this stage we believe it is sufficient to raise the point of principle. I ask the Minister to justify going against the recommendations of the Joint Committee and the ISC.

Amendment 219A is an amendment to government Amendment 219. It would require the head of the intelligence service to consult the judicial commissioner when deciding whether the nature of a bulk personal dataset acquired through a class bulk personal dataset warrant requires a separate warrant. It would require consultation with the judicial commissioner where there is a sense from the head of the security services that a particular bulk personal dataset requires separate authorisation.

Amendment 223A relates to Clause 186(6), which states that a separate warrant is not required to retain and examine a bulk personal dataset that may reasonably be regarded as a replacement for a bulk personal dataset for which a warrant already exists—for example, the latest edition of the electoral roll. The amendment would exempt from this automatic authority for a replacement dataset—

[Earl Howe]

It may be for the convenience of the Committee to appreciate, as I understand it, that the noble Lord would like to put this group with the group that I think was originally separated out; that is, the group beginning with government Amendment 221. Is it his wish that we should deal with everything comprehensively in one go or shall we split the groups as originally proposed?

[Lord Paddick]

I do apologise; perhaps I have an out of date list. It would be helpful if we could deal with all these matters together if that is possible. The noble Earl indicates that it is and I am grateful.

Amendment 223A refers to Clause 186(6), which states that a separate warrant is not required to retain and examine a bulk personal dataset that may reasonably be regarded as a replacement for an updated bulk personal dataset for which a warrant already exists. The amendment seeks to exempt from this automatic authority a replacement dataset which contains new and additional information that was not included in the original bulk dataset. For example, if a new electoral roll was to contain the email addresses of voters as a new category of information, a new warrant would be required even though it might be considered a replacement for a bulk personal dataset that was already in existence.

Amendment 223C refers to Clause 187 and the definition of “health record” under subsection (6)(c). It states that a,

“‘health record’ means a record, or a copy of a record, which … was obtained by the intelligence service from a health professional”.

Should this not be “would be obtained” to cover the situation where the authority to obtain the record was not given? Whether something is a health record or not should not depend on whether it has or has not been obtained by the intelligence service.

Amendment 223D requires that the judicial commissioner who approves bulk personal dataset warrants, in addition to those matters contained in Clause 188(1)(a), should also consider in the case of health records the additional safeguards set out in Clause 187(3); that is, that there are “exceptional and compelling circumstances”. Following on from our previous amendment, we would say exceptional and compelling,

“circumstances ‘relating to national security’”.

[Earl Howe]

My Lords, given that we are grouping everything together in the way we have agreed, perhaps it would be appropriate if I complete my remarks on the government amendments before addressing the noble Lord’s amendments. The amendments that I have not yet spoken to are government Amendments 221 and 222. These are related to and consequential on the government amendments introducing restrictions on the use of class warrants that I have already spoken to. They are part of a set of amendments that honour the Government’s commitments in the other place that we should provide further restrictions on the use of class BPD warrants. Amendments 221 and 222 amend Clause 186, which makes provision for specific BPD warrants. In particular, Amendment 221 adds to the circumstances in which an agency may apply for a specific BPD warrant the situation in which it is prevented from relying on a class BPD warrant by the new clause placing restrictions on the use of those warrants that we debated earlier. Amendment 222 builds on this by placing an obligation on the agency in such circumstances to include an explanation of why it cannot rely on a class BPD warrant in its application for a specific BPD warrant. These amendments thus ensure that the provisions in the Bill setting out the circumstances in which class and specific BPD warrants should be used will operate coherently together. These amendments thus also respond to the constructive engagements we have had with the ISC and the other place.

Turning to the amendments of the noble Lord, Lord Paddick, I understand that the intention behind Amendments 219A and 218B and the stand part debate is to remove the provisions allowing for class BPD warrants. Perhaps it is worth reminding ourselves that class BPD warrants provide an appropriate means of authorising the retention and use of datasets that are similar both in nature and in the level of intrusion that their retention and use would result in. This would, for example, allow the Secretary of State to authorise a class of dataset relating to travel covering datasets that are similar in nature but refer to different travel routes, or perhaps where they were provided by different sources. The decision to issue a warrant for a particular class of data would be subject to approval by a judicial commissioner before being issued.

Removing class warrants would increase bureaucracy without increasing safeguards. It is also unnecessary because such warrants are subject to the “double lock” authorisation process by a Secretary of State and judicial commissioner. If they considered that a class bulk personal dataset warrant was too broad, they would not issue it.

It is quite true that the ISC and the Joint Committee which scrutinised the draft Bill did not endorse class BPD warrants in their original reports on the draft Bill, but the ISC’s view on this has changed. As the chair of the ISC said at Third Reading of the Bill in the other place,

“we then had further evidence—as has happened in the dialogue with the Government and the agencies—in particular from the Secret Intelligence Service, about the rationale for retaining class warrants in the Bill. In particular, the evidence highlighted the fact that many of these datasets covered the same information or type of information. In those circumstances, we considered that a class warrant would be appropriate, as the privacy considerations were identical”.—[Official Report, Commons, 7/6/16; col. 1063.]

He then made additional comments on restrictions on their use. The Government accepted in principle the ISC’s arguments for restrictions on the use of class BPD warrants, and we have already discussed amendments brought forward by the Government to reflect this. So I hope that, on reflection, the noble Lord will want to think further about those amendments that seek to excise class BPD warrants.

Amendment 219A adds to Amendment 219—the government new clause on restricting use of class bulk personal dataset warrants—that the judicial commissioner must be consulted before a decision is taken. This is an unnecessary amendment. The Secretary of State and judicial commissioner double lock will apply not only to new class and specific BPD warrants, but also to renewals of both types of warrants. This gives them effective oversight of the datasets that appear under each type of warrant. These decisions will also be subject to retrospective oversight by the Investigatory Powers Commissioner. To add another pre-consultation is not necessary or efficient. Moreover, the draft code of practice includes detailed guidance on when a specific BPD warrant should be sought. It also makes it clear, for example, that if required in an individual case, the security and intelligence agency can seek guidance from the Secretary of State or a judicial commissioner on whether it would be appropriate for a specific BPD warrant to be sought. So again, I hope that the noble Lord will want to reflect further on that amendment.

Amendment 223A would restrict the extent to which a specific BPD warrant could extend to replacement datasets. In effect, it would mean that only absolutely identical datasets could be covered by these provisions. The provision for a replacement dataset would be relevant only where a specific BPD warrant has been authorised and is already in place. The provision is a pragmatic and sensible approach to situations where a dataset is regularly or continually updated; for example, a particular dataset may be updated weekly or monthly. These updates would, by definition, include additional information, but in these cases the necessity and proportionality case and operational purposes would not alter. To require repeated new warrants in this scenario would not be proportionate; the notion of a replacement dataset allows the agencies to use these amended and updated data in line with the existing authorisation. Again, I hope the noble Lord will find that acceptable.

Investigatory Powers Bill

Lord Paddick Excerpts

Monday 5th September 2016 Lords Chamber

[The Marquess of Lothian (Con)]

My Lords, I welcome the government amendment and support Amendment 194. I, too, am a member of the Intelligence and Security Committee. Indeed, I have to admit to having been a member of that committee for more than 10 years now.

The Government have tabled a very sensible amendment. There have been times during our investigations when we have come across issues which were really not for the committee to look at in detail but much more for the commissioners. This power for us to refer to the commissioners is a very valuable addition to the way in which we can make sure that the scrutiny of how this legislation works is done fairly and on a broad basis.

I support Amendment 194 because it is the additional element to what the Government are proposing, and makes total sense. For the committee to refer something to the commissioner yet not be able to hear the result of that investigation after it has been carried out does not seem very sensible. Indeed, as many of these issues will arise in the process of the committee investigating rather broader, more strategic interests, while needing to know the result of the commissioner’s investigation, it really would make logical sense to accept the addition made by Amendment 194.

[Lord Paddick (LD)]

My Lords, we, too, very much welcome the Government’s amendment but we also support Amendment 194, for the reasons outlined by noble Lords. Surely, if there is an investigation, the committee deserves to know the result of that investigation as well.

Investigatory Powers Bill

Lord Paddick Excerpts

Tuesday 19th July 2016 Lords Chamber

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

My Lords, we recognised during the passage of the Bill thus far that care must be applied to the acquisition of internet connection records—in particular, that they should not be acquired for trivial purposes. Their value to law enforcement has been widely recognised, and the Bill, as introduced, already restricts access to four specific purposes. In addition, local authorities cannot acquire them for any purposes.

However, in response to a suggestion from the shadow Home Secretary in the House of Commons, the Government committed to consider further restrictions which would provide greater reassurance that the powers to acquire internet connection records would only ever be used proportionately. These amendments therefore apply a threshold to the acquisition of internet connection records when the statutory purpose is for the prevention and detection of crime. This means that they will be able to be acquired only for offences that are sufficiently serious that an offender can be sentenced to at least six months’ imprisonment.

In implementing this threshold, however, it is important that internet connection records can continue to be used for certain offences which, for whatever reasons, carry a lower sentencing limit. I am sure that noble Lords will agree that internet connection records should be available for these offences. These are: the investigation of any offence where the sending of a communication is an integral part of the offence: for example, offences related to stalking, cyberbullying and harassment which can, if not investigated, quickly escalate to more serious offences; offences relating to breach of a person’s privacy, such as stealing personal data, which recognises the importance of protecting privacy in the digital age and the need to fully investigate any suspected breaches; offences committed by corporate bodies—for example, corporate manslaughter, where a penalty of imprisonment cannot apply; and any offence meeting the serious crime threshold in the Bill for the most intrusive powers, ensuring that these powers can be used to investigate offences involving the use of violence, conduct that results in substantial financial gain and conduct by a large number of people in pursuit of a common purpose.

A number of consequential amendments are made as a result of this amendment. The Government and law enforcement are clear about the value and importance of accessing internet connection records to prevent and detect crime, and to keep the public safe. That has been recognised during the passage of this Bill thus far, including by noble Lords at Second Reading. The amendments build significantly on the safeguards that the Bill already applies to the acquisition of communications data. They are based on the amendments proposed by the Opposition in the House of Commons and they will ensure public trust in the use of these vital powers. I beg to move.

[Lord Paddick (LD)]

My Lords, the restrictions on using internet connection records set out in these amendments are welcome. However, we intend to propose the removal of internet connection records from the definition of communications data that the Secretary of State can require a telecommunications operator to retain when we come to debate Clause 83. The intended effect of that amendment would be to make it impossible to obtain internet connection records unless they were retained by the telecommunications provider for its own business purposes. I will leave any further comment on internet connection records until we reach Amendment 156A to Clause 83.

--- Later in debate ---

Moved by

[Lord Paddick]

116: Clause 58, page 46, line 40, leave out “, in particular,” and insert “not”

[Lord Paddick]

My Lords, I shall speak to Amendment 116 in my name and that of my noble friend Lady Hamwee. We also have our names to Amendments 154 and 235 in this group.

These amendments relate to a government commitment not to require telecommunications operators to retain third-party data. On 4 November 2015 in a Statement in the other place, the then Home Secretary said that the Bill,

“will not include powers to force UK companies to capture and retain third party internet traffic from companies based overseas”.—[Official Report, Commons, 4/11/15; col. 969.]

However, Clause 58(5)(c) states:

“An authorisation … may, in particular, require a telecommunications operator who controls or provides a telecommunication system to obtain or disclose data relating to the use of a telecommunications service provided by another telecommunications operator in relation to that system”.

Surely this means third-party data.

Amendment 116 would alter Clause 58(5)(c) to read, “may not require”. The key point here is that telecommunications companies should not be forced to obtain third-party data. The draft code of practice on communications data states at paragraph 2.61:

“A data retention notice can never require a CSP to retain the content of communications or third party data”.

Paragraph 2.66 states:

“A CSP cannot be required to retain third party data as part of an ICR”.

Amendment 154 would add a new subsection to Clause 83(2)—the clause headed “Powers to require retention of certain data”—to make explicit that a retention notice may,

“not require a telecommunications operator to retain any third party data, unless that data is retained by the telecommunications operator for its own business purposes”.

This is to distinguish between communications data that the telecommunications operator may have and being forced to acquire third-party data that it does not have.

Amendment 235 would restrict the definition of communications data in Clause 233(5) so that it relates to the provision of the service by that operator and not a third party. I beg to move Amendment 116.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I have added my name to Amendment 154 and will not repeat what has been said about it. It simply asks the Government to make explicit what they have said—namely, that the retention of third-party data will not be required. It would be helpful to make that clear in the Bill.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, as the noble Lord, Lord Paddick, has explained, these three amendments all deal with the issue of third-party data. Amendment 116 seeks to prevent public authorities from acquiring third-party data, Amendment 154 seeks to put the Government’s commitment not to require retention of third-party data on to the face of the Bill and Amendment 235 seeks to amend the definition of communications data to exclude from it third-party data.

On the acquisition of third-party data, the Bill maintains the existing position under RIPA that public authorities can acquire third-party data where necessary and proportionate to do so. But I want to be clear here—a provider is required to comply with a request for communications data, including a request for third-party data, only where it is reasonably practicable for them to do so. It is absolutely right that, where a communications service provider holds, or is able to obtain, communications data, whether in relation to its own services or those provided by a third party, then the data should be available to public authorities for the statutory purposes in the Bill. Put simply, data that already exist, are already held and which could save a life, convict a criminal, prevent a terrorist attack or provide an alibi, should not be put out of reach of law enforcement based solely on which company it is that holds the information.

Amendment 154 deals with the retention of third-party data. As I am sure the noble Lord knows, this matter was considered in the Commons, where the Government gave a commitment to consider it further. I am grateful to the noble Lord and the noble Baroness for tabling this amendment and giving me an opportunity to update the Committee on those considerations. My right honourable friend the Home Secretary has given a clear commitment that we will not require a telecommunications operator to retain third-party data, and that commitment is given effect to in the Communications Data Draft Code of Practice. However, distilling that commitment into primary legislative drafting is complex. We do not want to include provisions in the Bill that are not entirely clear in scope or which put in place restrictions that are broader, or indeed narrower, than intended. But we have been making good progress and are close to a provision that we think achieves the desired outcome. Of course, we need to test that drafting with operational stakeholders and with those telecommunications operators likely to be affected by the legislation, but we hope to be able to return to this issue on Report.

Finally, on Amendment 235, the principle of what are communications data is clear. Changing that position so that the classification of data changes depending on which provider holds them would no doubt cause confusion among providers as to how the data should be handled. While I understand the concerns around third-party data, and hope that what I have said today lays some of those to rest, amending the definition of communications data is not the right way forward. I invite the noble Lord to withdraw Amendment 116.

[Lord Paddick]

I am grateful to the Minister for his explanation and am encouraged by the promise of government amendments on Report. I have to say that I am still a little confused. The former Home Secretary, in her commitment, said that third-party data of telecommunications operators from abroad would not be required to be retained by UK telecoms operators. If the third-party data are of a different UK telecoms operator, surely the Secretary of State can make an order to get the data from that operator. But I will read carefully in Hansard what the Minister has said. As he has made a commitment, we will come back to this on Report. For the moment I beg leave to withdraw the amendment.

Amendment 116 withdrawn.

--- Later in debate ---

[Earl Howe]

My Lords, in moving Amendment 124 I shall speak also to Amendment 127. We consider the requirement for an authorising officer to be independent of the operation or investigation being worked on an important safeguard and intend the exceptions to be drawn as narrowly as possible. That is why we welcomed the Intelligence and Security Committee amendments on this in the House of Commons and why we have tabled these amendments, which fully reflect the substance of the ISC’s intention and more narrowly define the national security exceptions. I beg to move.

[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have Amendment 126 in this group. It attempts to challenge the fact that the size of the relevant public authority, which may make it difficult to find a senior officer independent of the investigation to which the authorisation relates, makes it an exceptional circumstance, which it would be if the Bill is accepted as drafted.

[Earl Howe]

My Lords, Amendment 126, as the noble Lord, Lord Paddick, has just explained, concerns the independence of the authorising officer. As I mentioned a moment ago, the Bill provides for a very limited set of circumstances in which the designated senior officer need not be independent of the investigation or operation; for example, where delays in locating an independent officer may pose a threat to life, or in specific cases where the interests of national security prevent it. As we have heard, the intention behind the amendment is to ensure that an authorising officer is always, without any exceptions, independent of the investigation. I beg the noble Lord’s pardon.

[Lord Paddick]

I am grateful to the noble Earl for giving way. We entirely accept that some public authorities will be so small, or some investigations so important, that there cannot be someone independent of the investigation who can give the authority. As the Bill is drafted, however, simply the size of the public authority is seen as an exceptional circumstance. It is not an exceptional circumstance and the amendment attempts to allow the size of the authority to be a reason why an independent senior officer cannot give the authority without making it an exceptional circumstance.

[Earl Howe]

I am very grateful to the noble Lord. He is right: in some small public authorities there will be only a small number of staff sufficiently senior to take on this important responsibility. Where he and I part company is over the question of whether the rank of the designated senior officer should be lowered to ensure that there are sufficient numbers of them to always be independent of the investigation. I do not feel able to agree to that, because to do so would lower the safeguards that form an integral part of the communications data regime. Equally, I am afraid the Government are not prepared to remove these powers from some of the smaller authorities. They may be small, but they often do vital work in keeping the public safe and investigating crime.

I would be happy to discuss this further outside the forum of Committee, if that would help the noble Lord. I understand where he is coming from, but we have a fundamental disagreement of view on this.

[Lord Paddick]

I would just add that we do not disagree that a public authority may be so small that there is no independent senior officer who can grant the authority; the problem is whether that situation would amount to an exceptional circumstance. However, I would be very happy to discuss that situation with the noble Earl between now and Report.

Amendment 124 agreed.

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Moved by

[Lord Paddick]

134: Clause 63, page 50, line 15, after “may” insert “by regulations”

[Lord Paddick]

My Lords, in moving Amendment 134, which is in my name and that of my noble friend Lady Hamwee, I will also speak to Amendments 135, 142, 144 and 240 and on whether Clauses 63 to 65, relating to filtering arrangements, should stand part of the Bill.

Amendment 134 would amend Clause 63(1) to say that the Secretary of State “may by regulations establish” rather than simply “may establish”. Amendment 240 is consequent on that. Amendment 135 would amend Clause 63(1), so that while the Secretary of State may establish filtering arrangements, she would not “maintain and operate” them herself. In fact, my understanding is that the Government have no idea at this stage who might maintain or operate such arrangements.

I do not intend to speak to Amendment 138, which we will not be moving and do not consider worth debating. Amendment 140 would have added to the duties in connection with the operation of the filtering arrangements—that the Secretary of State shall, in exercising her powers under Clauses 63 to 68, have regard to the general duties in relation to privacy in Clause 2.

To the duty on the Secretary of State to provide a report to the Investigatory Powers Commissioner about the operation of the filter, Amendment 142 adds a duty to lay a report before each House of Parliament about the functioning of the filtering arrangements during the previous year. Amendment 144 requires the Secretary of State immediately to report to the Investigatory Powers Commissioner any processing errors—not just “significant” processing errors—giving rise to a contravention of the requirements of this part.

This feature of the Bill is almost identical to that proposed in the Communications Data Bill. The Joint Committee described it as a government-owned data mining device. I described it on Second Reading as a virtual national database. The noble and learned Lord, Lord Keen of Elie, said that it was not a database. I did not maintain that it was; I said it was a virtual database. My understanding is that this is a search engine that would have real-time direct access to communication databases held by every communication service provider, including, if the Bill is not amended, everyone’s internet connection records.

At the moment, the police and security services, through a single point of contact, make application to communication service providers, which assess the lawfulness of the request and, if satisfied, provide the information. The filter would bypass that important safety check and allow security services to self-authorise access to communication service providers’ data. It would allow complex queries that could provide detailed information about people’s private lives. As the noble Lord, Lord Lucas, said on Second Reading:

“We are producing a resource there that Francis Urquhart would have loved to have his fingers on: absolute knowledge of everyone’s private life”—[Official Report, 27/6/16; col1427.]

The request filter would make life for the police and the security services easier—I say the security services, but I think they have their own systems. Life without the filter would not be impossible for the police, just not easier than it is now. It is therefore not necessary, only desirable and, as such, fails the necessity and proportionality tests for the invasion of privacy.

The Government cannot say what it would look like, where it would be built, who would run it on their behalf or how it would be kept secure. It is a hypothetical virtual database. It would be a dangerous precedent for Parliament to authorise such a device without knowing who would run it and what the security implications would be. I beg to move.

[Lord Lucas]

My Lords, I have Amendments 141 and 143 in this group. I very much share the concern of the noble Lord, Lord Paddick, about the request filter. It is an exceptionally powerful system because it will make life so easy. A casual request for data on someone who might possibly be of interest can be done in a moment—you do not have to think about it—rather than tying up resources to such an extent that you probably do not do it.

We are all familiar with the fact that those in the police service are human; doubtless, the people who run this resource will be human. The potential for casual misuse or misuse suborned by journalists will be considerable. On top of that is potential misuse by government. Given that at the moment we do not have an effective Opposition and I suspect that the Bill will effectively pass on the nod, I very much hope that my noble friend will reassure us that not only will there be exact and complete record-keeping for the filter but that those records will be independently inspected, that the results of those inspections will be publicly available and that people who find themselves tied up in nastiness as a result of information which may well have come from the filter will be able to find out whether that has happened.

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I assure the noble Lord that the filtering arrangements are a vital part of the Bill and are already subject to strict safeguards set out in the primary legislation. These amendments are therefore at best unnecessary and at worst may weaken some of those safeguards already in the Bill. I invite the noble Lord to withdraw the amendment.

[Lord Paddick]

My Lords, I thank the Minister for his response. We were concerned that the privacy provision in Clause 2(1)(d) states that it relates to the grant, approval or cancellation of an authorisation rather than to the establishment of the filter. However, I accept that the use of the filter is covered by Clause 2. I am also concerned about what the noble and learned Lord said about significant processing errors. If even a minor processing error leads to a contravention of the requirements of this part of the Bill, it could be argued that that is a serious matter, whether the processing error is significant or not. However, at this stage I beg leave to withdraw the amendment.

Amendment 134 withdrawn.

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Moved by

[Lord Paddick]

145: Clause 67, page 53, line 38, leave out “add a public authority to, or”

[Lord Paddick]

My Lords, Amendments 146 and 147 in this group are also in my name and the name of my noble friend Lady Hamwee. Much concern has been expressed about the number of public authorities that can intrude into people’s privacy, and as a result, restrictions have been put in the Bill. If the Bill is enacted there will be fewer public bodies with that ability, and that is to be welcomed. We therefore do not think it is right that under Clause 67 the Secretary of State should be allowed by regulation to add a public authority. Amendment 145 would delete this power from Clause 67(2)(a) and Amendment 146 would make a similar change to subsection (3).

Amendment 147 would impose a duty on the Secretary of State to consult representatives of local authorities—for example, the Local Government Association—if she intends to make regulations to change a local authority-designated senior officer to someone of lower office, rank or position, in addition to consulting each of the local authorities concerned, as set out in Clause 69(5). I beg to move.

[Earl Howe]

My Lords, these amendments all concern the public authorities that are able to acquire communications data. I should take this opportunity to mention a document which we published last week and which is available in the Printed Paper Office: Operational Case for the Use of Communications Data by Public Authorities. It sets out why it is essential that the authorities listed in Schedule 4 to the Bill are able to acquire communications data. It is important to recognise that the crimes they investigate are not trivial. They include offences such as bribery and corruption, defrauding vulnerable people of their life savings, stealing sensitive personal information and supplying dangerous counterfeit medicines. That document is pertinent to this group of amendments, because Amendments 145 and 146 would remove the ability of the Secretary of State to add public authorities to Schedule 4 by regulations.

I recognise the well-intentioned purpose of the amendments. However, it is not something that the Government can support because it goes against our stated aim of ensuring that the Bill is future-proofed. Although we have no plans to use the regulation-making power, and, indeed, we think it unlikely that any additional authorities will be identified, it would not be good policy to specifically rule it out. That is because communications data are an essential investigative tool for numerous investigations and they are used by a number of different authorities. As I said, we have published the operational case demonstrating why it is so essential that the authorities listed in Schedule 4 continue to be able to use these powers.

As that operational case demonstrates, the authorities that acquire communications data, including the so-called “minor users”, often do so to investigate serious crime and, in some cases, save lives. Should a new investigative body be established—for example, with a remit to investigate a specific type of serious crime—we would want the flexibility to give it the powers that it needed. Similarly, we need to be able to adapt the list if changes in the roles and responsibilities of public bodies mean that it falls out of date.

Of course, there should be full and proper scrutiny of any decisions to provide powers to an additional body. The Government will consider giving powers only where a public authority can make a robust case and, perhaps more importantly, the Bill allows a public authority to be added to Schedule 4 only under the enhanced affirmative procedure. This procedure requires additional consultation above and beyond the affirmative procedure and ensures that a parliamentary committee is provided with an opportunity to consider the draft regulations.

This power has been considered by the Delegated Powers and Regulatory Reform Committee. In her letter to the Joint Committee that scrutinised the draft Bill, my noble friend Lady Fookes reported that the committee accepted the need for the delegated power and welcomed the strengthening of scrutiny procedures under the Bill. She said that,

“the enhanced affirmative procedure ... provides an appropriate level of Parliamentary scrutiny”.

I hope that that reassures the Committee that sufficient scrutiny is already built into the process to ensure that an additional public authority would be added to Schedule 4 only where it had a robust and compelling need for the powers.

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[Earl Howe]

My Lords, I was referring to the procedure relating to the enhanced affirmative process. That procedure is set out in Clause 239 of the Bill. Importantly, it provides for a relevant parliamentary committee to report on the regulations. I do not think that I can be more specific at this stage. The enhanced affirmative procedure has been used in the past, albeit not very frequently, and is there as an additional safeguard. I endorse everything that my noble friend said in support of my remarks. He is absolutely right that we cannot foresee at this stage the need to add to the list, but we must and should provide for the circumstances where that becomes necessary.

[Lord Paddick]

I am grateful for the noble Earl’s explanation. The noble Lord, Lord King of Bridgwater, raised this important concern that people have about the range of public authorities that will be able to access this data. There is a real concern that the Secretary of State by regulation can simply add to the list included in the Bill. As a general principle, to have provisions in a Bill in order—to quote the noble Earl —to future-proof it, even if those are unlikely to be used, is not the ideal way forward. However, the enhanced affirmative procedure does give some reassurance on that issue.

On the other matters, I will read carefully what the noble Earl has said, but at this point I beg leave to withdraw the amendment.

Amendment 145 withdrawn.

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[Lord Strasburger]

My Lords, I rise to speak to Amendment 147A in my name and that of my noble friend Lord Paddick. My noble friend also has Amendment 156A in this group and he will speak to that amendment; I may have something to add on it after he has spoken.

Amendment 147A requires a judicial commissioner to authorise requests to obtain data from internet connection records. As it happens, this is a very hot topic because only this morning an Advocate-General of the European Court of Justice issued his opinion in the case brought by Tom Watson and, before his appointment to the Cabinet, David Davis. Of course this is not the final judgment of the court, but it is usual for it to confirm an Advocate-General’s opinion. This case concerns the Data Retention and Investigatory Powers Act 2014, one of the Acts that this Investigatory Powers Bill seeks to replace.

In particular, the ruling addresses the legality and the safeguards around the speculative retention of communications data. As such, it is of direct relevance to the provisions in this Bill regarding the retention of communications data and the retention of internet connection records. So I have discarded most of my speech and instead I will let the Advocate-General’s words speak for Amendment 147A on my behalf. At paragraph 236 of his ruling he states:

“Lastly, I would add that, from a practical point of view, none of the three parties concerned by a request for access is in a position to carry out an effective review in connection with access to the retained data. Competent law enforcement authorities have every interest in requesting the broadest possible access. Service providers, who will be ignorant of the content of any investigation file, are incapable of checking that requests for access are limited to what is strictly necessary and persons whose data are consulted have no way of knowing that they are under investigation, even if their data is used abusively or unlawfully … Given the nature of the various interests involved, the intervention of an independent body prior to the consultation of retained data, with a view to protecting persons whose data are retained from abusive access by the competent authorities, is to my mind imperative”.

So the Advocate-General is saying that, because the police have a strong interest in the request for the data, and because the service providers cannot judge the merits of the request, and because the subject of the request does not know that it exists, it is imperative, in his words, that an independent body should decide. Incidentally, he goes on to suggest that there could be exceptions in cases of “extreme urgency”.

To my mind, that independent body he speaks of can only be the judicial commissioner, which is precisely what Amendment 147A stipulates. If the Government believe that the independent body could be something other than the judicial commissioner, perhaps the Minister can inform the Committee when he responds, and say how the Government intend to incorporate the Advocate-General’s opinion, should it be confirmed by the court, into this Bill. I beg to move.

[Lord Paddick]

My Lords, I wish to speak to Amendment 156A in my name and that of my noble friend Lady Hamwee. Before doing so, I endorse wholeheartedly what my noble friend Lord Strasburger has just said. The decision of the Advocate-General released today appears very much to add considerable weight to the arguments in favour of Amendment 147A.

Amendment 156A is an amendment to Clause 83, headed, “Powers to require retention of certain data”. It would exclude internet connection records from the types of data that telecommunications operators can be required to store, and, as such, would effectively remove the only new provision—the use of internet connection records—from the Bill.

We believe that such an amendment is necessary for several reasons. Internet connection records do not do what the Government claim they do. They do not provide the police and security services with the internet equivalent of the communications data they already have—for example, access to mobile phone provider data. It is far more complex than that. At best, internet connection records provide only details of which communications platforms have been used, most of which are based in the United States.

Whether useful communications data can be accessed depends on voluntary co-operation by the American companies, which is unlikely in all but serious cases—for which there is an alternative. Internet connection records may provide leads, but they are difficult, complex and time-consuming to follow up. They fail the necessity test. The security services—MI5, MI6 and GCHQ—say that they do not need internet connection to be stored by telecommunications operators because they have other ways of securing the data that they need. In serious crime cases, GCHQ can, does and will help law enforcement to secure the communications data that the police need without recourse to internet connection records.

Indeed, there is a co-located joint operations cell in which the National Crime Agency and GCHQ have joined forces to tackle online crime—initially child sexual exploitation, but in the future other online crime as well. This information is in the public domain. At Second Reading, when I suggested that law enforcement could use security service powers instead of ICRs, the Minister said:

“But of course that is neither practical nor effective because many of the powers of the security services produce investigative material that is not admissible as evidence in a court of law”.—[Official Report, 27/6/16; cols. 1459-60.]

It would appear that the National Crime Agency and GCHQ agree with me rather than with the noble and learned Lord. Indeed, case studies that I was shown when I visited GCHQ tend to undermine the Minister’s assertion.

We began Committee stage by looking at RUSI’s 10 principles for the intrusion on privacy. I will quote just one, on “necessity”, which states that,

“there should be no other practicable means of achieving the objective”.

Internet connection records fail the necessity test. The National Crime Agency and GCHQ co-operation shows that there is a practical alternative.

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[Lord King of Bridgwater]

I understand the importance of safeguards, but the noble Lord’s thrust is that he is against the retention of internet connection records in total. He therefore totally disagrees with the impressive Joint Committee of both Houses, which considered the matter at some length. It said:

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

Does he disagree?

[Lord Paddick]

I am grateful for the chance to clarify my position. That is my position: we disagree with the conclusions of the Joint Committee. We believe, on balance, that the retention of internet connection records is disproportionate and unnecessary.

Technology experts recommend that companies should plan on the basis of their security measures having been breached, not just plan for the security of their databases. This makes highly intrusive personal data potentially available to criminals and hostile foreign powers. If a criminal establishes that a married man is accessing gay websites, or a hostile foreign Government establish that an intelligence officer is accessing lonely hearts websites, that could increase the risk of blackmail or entrapment. Knowing from ICRs when someone is not at home can increase the risk of burglary.

Internet connection records are hugely expensive to analyse and store. Based on estimates from Denmark, where the storage of internet connection records has already been explored extensively, the set-up costs alone in the UK could be around £1 billion. As in the UK, the cost estimates provided by the Government and telecommunications providers in Denmark varied widely. The Government therefore asked independent management consultants to establish the true cost, which confirmed that the telecommunications service providers’ estimates were the correct ones. Extrapolating from the independently verified Danish costs using the relative populations of both countries would take the set-up costs alone for internet connection records in the UK to more than £1 billion.

For those who think that this cannot be right, I should say that 80% of all the data ever created since the beginning of time has been created in the last two years. That is the rate of increase, and, with more and more devices being connected to the internet, such as those controlling our central heating, and with even refrigerators and ovens being connected to the so-called internet of things, the number of internet connection records is set to increase exponentially. Apart from not being able to see communications in among all these other internet connections, the storage costs alone will be enormous.

Taking all these arguments together, the storage of the internet connection records of everyone in the UK for 12 months, whether they are suspected of wrongdoing or not, fails the proportionality test. I quote the RUSI report again, this time on proportionality. It states:

“Intrusion must be judged as proportionate to the advantages gained, not just in cost or resource terms but also through a judgement that the degree of intrusion is matched by the seriousness of the harm to be prevented”.

The advantages gained through the storage of internet connection records are limited, the costs are prohibitive, the degree of intrusion is huge and serious harm can be prevented through other means.

[Lord Murphy of Torfaen (Lab)]

My Lords, the noble Lord, Lord King, touched on the issue of the Joint Committee. It may be useful for your Lordships to hear what it said about ICRs. The noble Lord, Lord King, was quite right in that regard. The Joint Committee said:

“While we recognise that ICRs could prove a desirable tool for law enforcement agencies, the Government must address the significant concerns outlined by our witnesses if their inclusion within the Bill is to command the necessary support”.

The Joint Committee also said:

“We recommend that the definition of Internet Connection Records should be made consistent throughout the Bill and that the Government should give consideration to defining terms such as ‘internet service’ and ‘internet communications service’. We recommend that more effort should be made to reflect not only the policy aims but also the practical realities of how the internet works on a technical level”.

The Joint Committee also recommended that,

“the Government should publish in a Code of Practice alongside the Bill advice on how data controllers should seek to minimise the privacy risks of subject access requests for ICRs under the Data Protection Act 1998”.

The Government accepted the recommendation on a code of practice—and, indeed, on the definitions. However, in general, the majority of members of the committee believed that ICRs are absolutely necessary to protect our citizens and give the security agencies and the law enforcement agencies the tools they need.

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[Lord Evans of Weardale (CB)]

My Lords, I was slightly puzzled by the comments from the noble Lord, Lord Paddick, suggesting that the National Crime Agency did not support these powers. The implication was—

[Lord Paddick]

I did not say that. Perhaps I can assist the Committee. What I said was that the security services—MI5, MI6 and GCHQ—have told me, in my visits to those agencies, that they do not require the retention of internet connection records for them to carry out their very important work around national security and serious crime. It is not the case, nor did I state, that the National Crime Agency does not support this measure. The National Crime Agency has supported it in its presentations to me. I have been to the National Crime Agency twice, because it failed to convince me the first time, and I am sad to say that it did not convince me the second time either.

[Lord Evans of Weardale]

I apologise if I misunderstood the reference to GCHQ and the National Crime Agency and the way in which that was phrased. I ought to declare that I am a former non-executive director of the National Crime Agency. I have been very affected in my thinking on this by the extent to which every law enforcement agency that I have spoken to, in particular the National Crime Agency, seems to believe that this is a very necessary power to enable it to have the evidential ability to pursue serious crime. That is where the distinction lies between the intelligence agencies, which are not seeking this as an evidential tool, and the National Crime Agency and other law enforcement bodies, which see it as an evidential necessity. Depending on a relationship between the NCA and GCHQ within the National Crime Agency seems an unlikely way around this. If there is an evidential requirement, we should put that in the Bill and provide it to law enforcement, rather than relying on GCHQ to provide it by some particular piece of machinery within the NCA, because that would not then be available to all those who might need it within law enforcement.

This is also relevant in terms of why, or the extent to which, other countries have not gone down this road. There is plenty of evidence that the United Kingdom has been considerably more successful, particularly in the pursuit and prosecution of paedophile crime online, than a number of other jurisdictions. That is partly because we have provided appropriate powers to law enforcement to be able to pursue this. The UK has been much more successful in terms of prosecution figures for very similar situations to those facing some European countries. We should continue to provide the powers that enable the UK to pursue those sorts of crimes, which are at the moment an absolute wave hitting the law enforcement community. If we do not provide it with the powers, we will leave a situation where very many people who have committed online paedophile crime are not prosecuted. From my point of view, that certainly does not seem a satisfactory way forward.

I am also slightly cautious about the argument that people can always get round this and that anyone applying their best security would not get caught. Almost all investigation, whether intelligence or criminal, relies on those who are criminals or threats to our security not being as good at what they are doing as they hoped. To say that we should not introduce powers because they are not infallible and that if someone applied all security measures they might be able to get around them would mean that we would provide very few powers to either the intelligence services or law enforcement agencies, because someone somewhere might be able to avoid them. Most people, most of the time, do not apply all the security that they could when they are undertaking either national security threats or crime. That is why we can catch them. We should provide as many powers as we can to catch these people before they damage us, and prosecute them afterwards.

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[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.

[Lord Paddick]

Will the Minister give way?

[Lord Keen of Elie]

Not just yet. The fact that other jurisdictions may have taken a different view is to be noticed but is not necessarily of any great moment in this context.

I want to deal with the suggestion by the noble Lord, Lord Paddick, that somehow GCHQ could provide the alternative route into all this material, and that somehow the security services would be there at the beck and call of the police authorities in order to in-gather and provide the appropriate information by different means. He asserted that the security services said, “We do not need”. That is far too hard-edged. They have other means but they did not say, “We do not need” in that context.

The noble Lord suggested that I had made an assertion on a previous occasion about the admissibility of certain intelligence acquired by the security services. I did not make an assertion; I made a statement of fact. Intelligence acquired through interception cannot be used as evidence in court. That is the factual position.

[Lord Paddick]

This Committee is part of the process of the scrutiny of legislation, and therefore this House should have respect for noble Lords who wish to use it to challenge what the Government are proposing. With regard to the greater success that the UK has had compared with, say, Germany in the prosecution of paedophiles, will the Minister confirm that that is using existing legislation without the use of internet connection records?

On the question of an evidential basis, why, in the operational case for internet connection records, is the need for evidential material not included in any of the examples provided by the National Crime Agency? Why, when I visited the NCA on a couple of occasions, was none of the examples that it gave of a need for evidence that could be presented in court? Indeed, the case studies presented to me at GCHQ confirmed that the work done by GCHQ in conjunction with the NCA was sufficient for the NCA to bring successful prosecutions, notwithstanding that the interception of content is not acceptable in giving evidence in court.

[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.

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Moved by

[Lord Paddick]

150: Clause 77, page 61, line 6, leave out from “(1)” to end of line 11

[Lord Paddick]

My Lords, perhaps this is a bit of light relief. Clause 77(1) defines what conduct is lawful when it comes to obtaining communications data, and Clause 77(2)(a) goes on to say that someone cannot be sued if what they do,

“is incidental to, or is reasonably undertaken in connection with”,

the lawful conduct defined in subsection (1). So far, so good. Clause 77(2)(b) goes on to say that someone cannot be subject to any civil liability in respect of conduct that,

“is not itself conduct for which an authorisation or warrant … is capable of being granted”,

under various acts set out in subsection (3) and,

“might reasonably have been expected to have been sought in the case in question”.

If I understand this correctly—and I am sure I have not—if that conduct could and should have been authorised but was not, they can be sued, but if it was not something that could or should have been authorised, no civil liability arises. Either that cannot be right, or it is capable of misunderstanding and should be changed. Can the Minister put the provision in plain English? Our amendment is probing to ensure that we know what we are dealing with. I beg to move.

[Lord Keen of Elie]

My Lords, the provisions on the lawfulness of conduct authorised by Part 3 replicate those that apply currently in the Regulation of Investigatory Powers Act 2000. As we made clear in response to an identical amendment in the other place, the Bill goes no further as regards providing indemnity from civil liability for conduct that is incidental to, or reasonably undertaken in connection with, a communications data authorisation.

The provision as drafted ensures that a person who engages in conduct only in connection with an authorisation cannot be subject to civil liability unless that activity could itself have been authorised separately under a relevant power. That, we submit, must be right. The amendment would remove that provision entirely, which, in effect, would mean that a person acting lawfully under an authorisation that had properly been granted under the Bill would be at risk of civil liability if some incidental or reasonably connected conduct were not expressly covered by the authorisation.

I notice that it is a probing amendment. In those circumstances, I invite the noble Lord to withdraw it.

[Lord Paddick]

I thank the noble and learned Lord for what he has said. However, we tabled this probing amendment in order to understand what the provision means. Unfortunately, simply saying that it replicates legislation that is already on the statute book does not really help our understanding. Perhaps the noble and learned Lord can say whether the provision has been applied in the past under the Regulation of Investigatory Powers Act.

[Lord Keen of Elie]

I am not in a position to give a specific answer to that question, but I am content to write to the noble Lord on the point.

[Lord Paddick]

I am very grateful to the noble and learned Lord for his promise to write on this issue. My question is genuine. Perhaps it is because I am not a lawyer and my brain is not very big, but I contend that the provision is impenetrable. At this stage, I beg leave to withdraw the amendment.

Amendment 150 withdrawn.

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Moved by

[Lord Paddick]

158A: Clause 93, page 70, line 6, leave out paragraph (c)

[Lord Paddick]

My Lords, this amendment is one of several in this group in my name and that of my noble friend Lady Hamwee. Amendment 158A probes what is meant by the term “any other information” in terms of the purpose of an equipment interference warrant. Clause 93(2) states that an “equipment interference warrant”,

“requires the person to whom it is addressed to secure interference … for the purpose of obtaining—(a) communications”,

which is defined in Section 126(1); “(b) equipment data”, defined in Section 94; and “(c) any other information”, which is not defined. Can the Minister at least give some examples of what “any other information” means? Amendments 185B and 185C cover the same point in other subsections of Clause 93.

Amendments 158D to 158M and Amendments 169B to 169T make a different point—to try to ensure greater targeting of equipment interference warrants. Clause 95 sets out the subject matter of targeted equipment interference warrants. Clause 95(1)(b) states that the warrant may relate to,

“equipment belonging to, used by or in the possession of a group … who share a common purpose or who carry on, or may carry on, a particular activity”.

Such a broad and potentially large group of people can only in the loosest sense be described as targeted.

Amendment 158J applies the same arguments to targeted examination warrants in Clause 95(2)(b). Similar arguments of not being too broad and not being sufficiently focused apply to Clause 95(1)(f):

“equipment which is being, or may be, used for the purposes of a particular activity or activities of a particular description”.

Instead, Amendment 158H would insert:

“A targeted equipment interference warrant may be issued only if the persons or equipment to which the warrant relates are named or specifically identified using a unique identifier”,

which could, for example, be the IP address for a particular device. Similar wording in Amendment 158M would apply to targeted examination warrants.

It is worth remembering what targeted examination warrants are for. If, as a result of the bulk collection of the content of overseas communications, the security services discover UK-based communications that they want to examine the content of, they must first have a targeted examination warrant. This is to prevent the bulk collection of the content of communications of UK citizens. How then can it be right that such a targeted examination warrant applies to such a broad range of communications as,

“a group of persons who share a common purpose or who carry on, or may carry on, a particular activity”?

If the security services know that the communication is UK-based, they must also know whose communication it is and can therefore specify that in the warrant.

Subsections (1)(g) and (h) and (2)(d) and (e) of Clause 95 make provision for the issuing of targeted equipment interference warrants and targeted examination warrants for the purposes of testing, maintenance of equipment and the training of people. Amendments 158F, 158G, 158K and 158L would leave out those provisions.

In the first Committee sitting we discussed the issuing of interception warrants for the purposes of testing equipment and training agents, and the noble and learned Lord responded to the debate at cols. 105 and 106. In response to the Minister’s explanation, I said that I was still puzzled about training and testing warrants. I accepted that new equipment required testing and individuals needed to be trained in real-life situations but said that I was concerned about who the individuals or organisations were that might be targeted in these training exercises, bearing in mind that the normal provisions regarding proportionality and necessity in terms of suspicions that these individuals were up to no good would presumably not apply in training and testing situations. If they were real bad guys, a non-testing and training warrant could be issued. The noble and learned Lord failed to convince me then, but perhaps he can try again now.

Amendments 169B and 169T make the necessary consequential changes to the requirements that must be met by warrants in terms of the details that must be included in equipment interference warrants. I beg to move.

[Lord Harris of Haringey (Lab)]

My Lords, I listened very carefully to the noble Lord, Lord Paddick, and his explanation of his amendments, but I was not at all convinced. If we believe that there is a need for the Bill, which I do, but have reservations about some of the issues around encryption, we have to ensure that the relevant agencies have some tools in their kit box. One of those tools has to be the ability to interfere with or look at the specific equipment. What the noble Lord is trying to do is to restrict the availability of that power to such an extent that it would effectively become almost useless. It would simply be available if you have one named individual. Therefore surely it is right that a significantly broader power should be available to engage here.

The question that the Minister who is going to respond needs to answer is this: how will the test of proportionality be applied in such cases? Presumably it is not proportionate to have such a broad sweep contained within the authorisation that it is inappropriate and overly onerous. The mechanism is therefore this: how is it determined that this is a proportionate and proper use of the power, and can we and the public be reassured that the mechanisms exist to ensure that that proportionality is adhered to?

--- Later in debate ---

Clause 93 sets out the categories of information that may be obtained through the proposed interference. It envisages that some warrants will be permitted only for the acquisition of less intrusive equipment data. Equally, in some cases, the circumstances may merit the use of techniques to obtain communications or other data from a suspect’s device. That provides a clearer regime than the current statutory framework and indeed, for stronger privacy protections. Accordingly, I invite the noble Lord to withdraw his amendment.

[Lord Paddick]

I am very grateful for the lengthy explanation that the noble and learned Lord has provided. However, I still have questions. One of the examples he gave was to be able to interfere with equipment of a group of people who are accessing a particular website. I guess that you would need to know the IP addresses of the devices that were accessing that website to interfere with them, and that would be within the terms of our amendment. I may have lost concentration, and apologise to the Minister if so, but I cannot remember him addressing targeted examination warrants, where presumably the security services—the only ones who would apply for such a warrant—would know the identity of the people. I am still not clear about the need for thematic targeted examination warrants.

The big question that I have around testing and training is: who are the poor innocent people targeted by the warrants used for testing and training purposes? How is it decided who should be targeted? Will the Minister say what that other information is that needs to be specified in the warrant?

I accept that the withdrawal of these powers would be a mistake but, as the Minister acknowledged to begin with, these are probing amendments. I am grateful for the explanations he has given so far. Perhaps he might write to me to deal with my further and more difficult questions, but at this stage I beg leave to withdraw the amendment.

[Lord Keen of Elie]

I shall be happy to write to the noble Lord on the three particular points. I do not think that they were the more difficult questions but they may be the ones that I did not fully answer, and I am content to write to him.

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Moved by

[Lord Paddick]

159: After Clause 95, insert the following new Clause—
“Security, integrity and privacy
The person making an application for a warrant under this Part must make a detailed assessment of—(a) the risk to the security or integrity of systems or networks that the proposed activity may involve;(b) the risk to the privacy of persons not being specifically targeted; and(c) the steps proposed to be taken to minimise these risks.”

[Lord Paddick]

I cannot find my notes.

[Lord Strasburger]

My Lords, while my noble friend searches for his notes, would it be appropriate for me to make my short speech on this matter? No? I was just trying to help.

[Lord Paddick]

That gave me sufficient time. I apologise to the Committee; it has been a long day already. My noble friend Lady Hamwee and I also have Amendments 160 and 169A in this group.

Equipment interference can involve hacking into telecommunication systems or a network by deploying software that could compromise the security or integrity of that system or network, making them vulnerable to attack by not only the forces of good but the forces of evil. It can also expose the communications of everyone using that system or network.

Equipment interference can also involve hacking into someone’s phone or computer so that any communication can be seen by the police or the security services, including messages that are end-to-end encrypted. As the noble Lord, Lord Harris of Haringey, mentioned, that is crucial, particularly as more and more communication is encrypted. Basically, anything that the person sees on the screen of their phone or computer and any information contained on the device, the police or the security services can see as well. This may, however, make the device vulnerable to hacking by others.

Amendments 159 and 160 would include in the Bill safeguards to protect systems and networks, reduce collateral intrusion and ensure that critical national infrastructure is safeguarded by requiring those applying for equipment interference warrants to make a detailed assessment of the risks involved. Amendment 169A is intended to require the judicial commissioner who is asked to approve the warrant to also consider an assessment of the risks, although I am not sure that the wording is entirely right for that amendment. I beg to move.

[Lord Strasburger]

My Lords, the Committee will get a feeling of déjà vu.

I rise to speak to Amendment 159 and others, and start by acknowledging that equipment interference—hacking, in common parlance—with a person’s computer or phone can be justified by known or suspected threats or by an actual incidence of serious crime. However, I still have two concerns. Some types of hacking pose a risk of serious unintended consequences for the target device and collateral damage to devices connected to it or even whole networks, right up to the national level. My other concern is that in the case of hacking by the police rather than by the security agencies there is a danger that a defence lawyer could, rightly or wrongly, claim that vital evidence located on the target device had been tampered with, so putting a successful prosecution at risk.

There are several known examples of large-scale unintended consequences of hacking by the authorities, and no doubt many more that we do not know about. One example is GCHQ’s attack on Belgacom, Belgium’s largest telecoms company, during 2010 and 2011. It involved infiltrating the home computers of several Belgacom staff to acquire their company passwords. Then highly sophisticated malware was installed on Belgacom’s systems to allow GCHQ to acquire large amounts of data. It cost Belgacom many millions of pounds and a lot of time to clean up its systems. Another example is a test by GCHQ that accidentally closed down an entire mobile network in a major city in this country for half a day. So there is a good case for the extra safeguards in Amendments 159 and 160, which are intended to reduce the risk of equipment interference going out of control, and I support them.

On the subject of the danger of allegations, accurate or otherwise, that the police had contaminated evidence in the device that they subjected to equipment interference, I would be interested to hear the Minister’s views. In the Joint Committee, my concerns were brushed aside by the police witnesses, but surely there is a serious danger that the police will be accused of planting, deleting or amending evidence just as they used to be about slipping incriminating evidence into the defendant’s pocket.

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[Earl Howe]

My Lords, I hope the noble Lord will accept that, in the context of training and testing, those activities are essential if we are to have fully functioning services. It should not only be current investigations that are used for training as that could jeopardise operations. Current investigations may not give the full range of testing and training opportunities to prepare staff and equipment for all necessary eventualities. I will write to the noble Lord on the precise procedures involved in authorising testing and training as I do not have the information in front of me. However, appropriate safeguards will be built into those procedures.

I come back to the point I was making about these amendments in general. I contend that they are not necessary because the Bill and the draft statutory code of practice already require that the impact on people’s privacy, including in respect of collateral intrusion and cybersecurity, is properly considered in every single case. The draft codes will, of course, also be subject to parliamentary scrutiny and agreement before they come into force. I hope that those remarks are helpful in reassuring the noble Lord and that he will withdraw his amendment.

[Lord Paddick]

I thank the Minister for responding to these amendments. I have to say that I am a little sceptical. Yes, of course, as I think he just mentioned, one part of GCHQ is responsible for improving cybersecurity and identifying vulnerabilities around it. However, the role of another part of GCHQ is to breach cybersecurity in order to access information on terrorists’ and serious criminals’ devices. Indeed, when I was at GCHQ it was accepted that there was a tension between the two parts of that organisation as far as that is concerned.

I am also not convinced that it is absolutely clear and obvious in the Bill that there is a need to consider the unintended consequences of damage to networks or devices. I accept what the noble Earl says about collateral intrusion but not in terms of damage to devices or networks. However, at this stage—

[Earl Howe]

Before the noble Lord decides what to do with his amendment, it might be helpful if I amplify my earlier comments. It is perfectly right to say that some equipment interference operations involve taking advantage of weaknesses, generally in how users are interacting with the internet, but sometimes vulnerabilities in the software or hardware themselves. However, I also contend that the use of equipment interference does not in itself create those weaknesses. While the security and intelligence agencies might on occasion—as I say—exploit such capabilities, they are at the same time committed to making the internet as secure as possible. As I mentioned, the security and intelligence agencies regularly highlight such vulnerabilities to industry.

There is a simple point to be made here. To leave targets open to exploitation by others would increase the risk that their privacy would be unnecessarily intruded upon. It would also increase the risk of those who wish to know who our targets are identifying the security and intelligence agencies’ tools and techniques. Therefore, operations must be carried out in such a way as to minimise that risk. I come back to the point I made near the start of my remarks: the purpose of GCHQ is to protect the public in that sense.

[Lord Paddick]

I am grateful to the Minister. While there may be a convoluted route to get to what is proposed in these amendments, if it amounts to the same thing and does the same job with regard to protections around ensuring that privacy is not unnecessarily intruded upon, I see no reason why the Government would resist these amendments. However, at this stage, I beg leave to withdraw the amendment.

Amendment 159 withdrawn.

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Moved by

[Lord Paddick]

176: After Clause 125, insert the following new Clause—
“Authorisations to interfere with property etc.
(1) The Secretary of State may by regulations made by statutory instrument amend the Police Act 1997 to provide that authorisations given under it for placing, using, maintaining or retrieving any equipment, apparatus or device which would enable the interception of any communication are subject to approval equivalent to the approval of warrants under this Part.(2) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”

[Lord Paddick]

My Lords, Amendment 176 is in my name and that of my noble friend Lady Hamwee. It would insert an additional clause after Clause 125, giving the Secretary of State power to amend the Police Act 1997 in relation to the authority given to law enforcement to place, use, maintain or retrieve,

“any equipment, apparatus or device which would enable the interception of any communication”,

so that such authority is in line with equivalent warrants under this Bill. The wording does not entirely do its job but it is a start. The intention of the amendment is to draw attention to anomalies in the granting of authority to law enforcement officers to intrude into people’s privacy and the need to bring all law enforcement surveillance authorities up to the same standard, as provided by the majority of the Bill.

The reason for there being no double lock involving a Secretary of State in Clause 100 is that the legislation currently used by law enforcement to carry out equipment interference—the Police Act 1997—does not require authorisation by the Secretary of State. This amendment allows the Secretary of State to amend the Police Act 1997 to ensure that similar authority levels apply across law enforcement and the security services, and to other types of intrusive surveillance not covered by the Bill.

As I have said, the Police Act 1997 is the legislation currently used by the police to conduct equipment interference. As the amendment suggests, the powers in the Police Act allow the police to plant tracking devices in cars, for example, and covert transmitting and recording equipment in people’s homes and offices. Under these current powers, a police chief can, without your knowledge or consent, plant a concealed camera or microphone in your home or office without a warrant, without judicial oversight and with no Secretary of State authority. Not only is that unacceptable, it is inconsistent with the Bill.

Noble Lords will be aware that equipment interference warrants issued to the security services are subject to the so-called double lock—the Secretary of State and the judicial commissioner. Clauses 96 and 97, on the power to issue equipment interference warrants to intelligence services, and Clause 98, on the power to issue equipment interference warrants to the Chief of Defence Intelligence, all require Secretary of State and judicial commissioner double-lock authority. Indeed, noble Lords have argued in previous debates on the Bill—and the Government have not demurred—that it is a constitutional necessity that politicians who can be held to account by Parliament authorise warrants. We disagree but the Government cannot have it both ways.

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[Lord Keen of Elie]

I am obliged to the noble Lord for his suggestion that this is essentially a probing amendment, which he directs at what he perceives as anomalies in the Bill. For reasons that I shall expand on, those anomalies do not exist.

Amendment 176 seeks to introduce a clause that would enable the Secretary of State to make regulations requiring that the authorisation of property interference under the Police Act 1997, where the purpose is to enable the interception of communications, should be subject to the equivalent approval processes as set out under Part 5 of this Bill, including double-lock review by a judicial commissioner. That is how I understand the amendment and the noble Lord indicates his agreement.

It is worth being clear that interception warrants are not issued under the Police Act 1997, but are currently issued by the Secretary of State under Part 1 of the Regulation of Investigatory Powers Act. However, sometimes it may be necessary for intercepting authorities to carry out property interference to enable interception to take place. In these circumstances, the intercepting authority would need to ensure that appropriate property interference authorisation is obtained in addition to an interception warrant.

Clause 14 will restrict the ability of law enforcement agencies to authorise this type of equipment interference under the Police Act 1997. The restriction will mean that where the purpose of the interference is to enable the acquisition of communications, private information or equipment data, the activity can no longer be authorised under the Police Act 1997. As a result, the amendment in question is not required, as it will not be possible to authorise the type of activity it envisages under the Police Act 1997.

In future, if it is necessary to interfere with property to enable interception to take place, the interference with equipment will need to be authorised under Part 5 of the Bill. The Bill and its associated codes of practice make it clear that an equipment interference warrant cannot authorise activity which would constitute live interception of communication in the course of its transmission. As a result, both an equipment interference warrant and an interception warrant will be required.

In practice, this activity is likely to be authorised as a combined equipment interference and interception warrant. Paragraph 3 of Schedule 8 to the Bill enables the Secretary of State to issue such a combined warrant to the relevant intercepting authorities, such as the NCA. This reflects the fact that the Secretary of State is responsible for issuing targeted interception warrants, and the Bill ensures that combined warrants always default to the most senior level of authorisation. Any such warrant would always also go through the double lock of judicial commissioner authorisation.

I hope that reassures the noble Lord that the amendment is not necessary and I accordingly invite him to withdraw it

[Lord Paddick]

I thank the noble and learned Lord for what he has said, but I did ask whether he would be prepared to offer an opinion about the deployment of a covert camera into somebody’s home without the need for either Secretary of State or judicial commissioner approval and what, in the Government’s opinion, is the right level of authority. I accept what he says about an interception warrant being required if equipment interference is for the purpose of intercepting communication. However, if it is for the purpose of observing what is going on inside an office or a home, I do not believe that that amounts to interception of communication as such, even though the people who are present in the room are communicating with each other. I do not think that amounts to interception of communication as intended by the Bill.

The other issue that I was hoping the noble and learned Lord could enlighten the Committee on is that equipment interference warrants issued to the security services require the double lock of the Secretary of State and a judicial commissioner, but equipment interference warrants issued to law enforcement do not require that double lock, because a police chief can self-authorise the issuing of such a warrant to such agencies. We have to bear in mind how intrusive that can be. We have already discussed that the equipment interference may not necessarily be in order to intercept communication, and the noble and learned Lord gave the example earlier of looking for a pornographic image on a computer. Despite what he said, it still seems an anomaly that the security services require a double-lock authority and the police do not.

[Lord Keen of Elie]

I am not sure to what extent I can respond before the noble Lord sits down, but let me be clear that I do not accept that there is an anomaly, because we are dealing here with two entirely different circumstances that are not directed to the present amendment. As regards a camera being placed in someone’s room, I undertake to write to the noble Lord on that if that will assist him, although it does not appear to me to assist with this amendment.

[Lord Paddick]

I am grateful to the noble and learned Lord, who has all the time in the world to add comments until I finally withdraw the amendment. However, I beg leave to withdraw it at this stage.

Amendment 176 withdrawn.

Investigatory Powers Bill

Lord Paddick Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, my Amendment 44 in this group might appear to want to resurrect the Wilson doctrine but it is really only to give it a decent burial. The Constitution Committee, of which I am a member, said in its report published on Monday that,

“the surveillance of parliamentarians is a significant constitutional issue”,

and that the committee,

“would welcome clarification from the Government of its current understanding of the Wilson Doctrine”.

The amendment allows for that and allows us to consider whether the procedures in the Bill make a better job of dealing with the difficult issue of whether communications of an elected member of a legislature should be intercepted and, if so, on what authority.

While it existed, the Wilson doctrine had merit in that it produced a higher threshold, mainly the involvement of the Prime Minister, and that in so far as it was observed—I have reason to believe that it often was observed in practice and that this was recognised to be a different situation to other interceptions—it played that useful role. However, it was riddled with failings. All it did, if your Lordships read it, was to set out the policy of a particular Government at a particular time. What it of course set out was not that the communications of parliamentarians would never be intercepted but that the Government’s policy at the time was not to do so and the Prime Minister would come before the House at a time of his choosing—presumably at a time when it would no longer be damaging to the investigation—and advise the House that the policy had been changed. It was a very odd doctrine; the Prime Minister could come to the House and say, “We’ve changed the policy but we’re going to change it back now because that inquiry has been dealt with”. It is one of the inherent inconsistencies in the doctrine.

It was never clear whether the doctrine bound any subsequent Government either not to intercept MPs’ communication or to come to the House at a time of their choosing to reveal that the policy had been changed. It raises a fascinating issue since, so far as I can see, no Prime Minister has ever come to the House and said what situation we were in—or are in, until this legislation is passed—under that doctrine. It clearly was not fit for purpose. We therefore have to ask ourselves whether the procedures in the Bill that essentially try to do the same thing—that is, to involve the Prime Minister and raise it to a higher level within the Executive—are a sufficient extra safeguard for the constituents and whistleblowers who will communicate with their MPs or with legislators. They may be doing so because they are aware of some evil going on within the very organisation that might seek to intercept their communications. We have to have some regard to this.

The Joint Committee on Human Rights recommended that the Speaker of the House of Commons and, by analogy, Speakers of other legislatures should have a role in this. Although I am attracted by the intention, I find it slightly difficult because of the position it would put the Speaker in. The analogy is drawn with the procedures which were recommended following the serving of a search warrant in the House of Commons in the Damian Green case. It was felt that if in future the Speaker was consulted before a search warrant would be executed on parliamentary premises, then it was an appropriate precedent.

There is trouble with that precedent. If a search takes place on the premises it does not remain secret for very long. It becomes pretty obvious that it has taken place. If an interception was taking place, then the Speaker might be in possession of the knowledge that MP X’s communications are being intercepted for a considerable period, during which he has to have normal dealings with that Member of Parliament, call that Member of Parliament in debate and so on. That strikes me as a rather difficult position in which to put the Speaker of the House of Commons, the Lord Speaker in this House or a Speaker in any other legislature.

Incidentally, the involvement of other legislatures in the provisions in the Bill is an advance on the Wilson doctrine which applied only, as far as I am aware, to the House of Commons. I find myself before this House having to rely on the Bill as it stands and the prime ministerial involvement as being a significantly higher threshold. As one has always been worried about the supremacy of the Executive in this activity, I cannot be entirely content with that except for the fact that we are building in a process of judicial oversight, which I have advocated for many years and I am delighted to find in the Bill, and have been discussing what the conditions for that oversight are.

I would not want us to get into the position which, as I understand it, would arise from the amendment moved by the noble Baroness because I do not want a judicial authority appearing to be the initiator of an interception. That seems to me to get the role completely wrong. A law and order organisation or national security organisation has to be the initiator and the Secretary of State one of the routes through which it goes on its way to be authorised. The procedure under the Bill would also involve the Prime Minister in this process. I probably have to be content with that unless someone comes up with something better or someone convinces me that the Joint Committee’s recommendation does not have the disadvantage that I mentioned. Of course, I do not have the slightest intention of pursuing Amendment 44 and attempting to write into the Bill the provisions of the obsolete Wilson doctrine but it is perhaps worth reminding ourselves of it.

[Lord Paddick (LD)]

My Lords, my noble friend Lady Hamwee and I have Amendments 45, 85A and 85B in this group. While I share the concerns of the noble Baroness, Lady Jones of Moulsecoomb, regarding the potential for partisan action in these circumstances, I would have thought if there was ever a need for political accountability in terms of who is going to be targeted by a warrant of this kind, it is where a parliamentarian is being targeted. I can see the tension and the dilemma in that.

The Bill states in Clause 26(2) that additional safeguards for Members of Parliament include the fact that:

“The Secretary of State may not issue the warrant without the approval of the Prime Minister”.

Our Amendment 45 suggests that where the warrant relates to a Member of the Scottish Parliament, it should not be issued without the approval of the First Minister of Scotland, as the most appropriate person to give such approval. Perhaps the Minister can explain why it should be the Prime Minister in every case.

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[Earl Howe]

My Lords, I shall also speak to the other government amendments in this group. These amendments seek to make minor changes to the notice-giving provisions in Part 9 of the Bill. Clause 225 provides for the Secretary of State to give a notice to a telecommunications operator in the United Kingdom requiring it to take steps in the interests of national security. Such a power is a critical tool in protecting our national security.

The power can only be exercised if the Secretary of State is satisfied that the steps required by a notice are necessary in the interests of national security and proportionate to what is sought to be achieved. The Government amended the Bill in the other place to provide for the application of the double-lock authorisation process to national security notices. This means that a national security notice could not be given unless a judicial commissioner had approved it.

This will replace the existing power in Section 94 of the Telecommunications Act 1984 which has been used for a range of purposes, including for the acquisition of communications data in bulk. This is now provided for in Part 6 of the Bill. Section 94 of the Telecommunications Act will be repealed. The power provided for by this clause will be used for a much narrower set of purposes than Section 94, but those purposes are nevertheless critical to our national security. The type of support that may be required from communication service providers includes the provision of services or facilities which would assist the intelligence agencies to carry out their functions more securely, or in dealing with an emergency as defined in the Civil Contingencies Act 2004.

A national security notice cannot be used for the primary purpose of obtaining communications or data. Clause 225(4) provides that a national security notice may not require the taking of any steps the main purpose of which is to do something for which a warrant or authorisation is required under the Bill. This amendment makes it clear that it is also the case that a notice may not require the taking of any steps the main purpose of which is to do something for which a warrant or authorisation is required under legislation which authorises the use of investigatory powers.

Amendment 90 lists the other statutes that provide for agencies to obtain data covertly—namely, the Regulation of Investigatory Powers Act 2000, the Regulation of Investigatory Powers (Scotland) Act 2000 and the Intelligence Services Act 1994. The amendment puts it beyond doubt that a national security notice cannot be used to circumvent the need to obtain a warrant or authorisation provided for in the Bill or in other relevant statutes.

I turn to Clause 226, which provides for the Secretary of State to give a technical capability notice to a telecommunications or postal operator requiring the operator to maintain permanent technical capabilities. The power builds on the current power in the Regulation of Investigatory Powers Act 2000 where a company can be obligated to maintain a permanent interception capability. The purpose of maintaining a technical capability is to ensure that, when a warrant is served, companies can give effect to it securely and quickly. The provision is particularly important when law enforcement or the security and intelligence agencies need to work at pace to identify and counter the actions of those who pose an immediate threat to the UK.

Subsection (7) of that clause provides for a technical capability notice to specify the period within which the steps set out in the notice are to be taken by the relevant operator. In practice, it will often be the case that a notice will require the creation of new technical systems. The time taken to design and construct such a system, including developing new pieces of technical hardware and implementing appropriate security measures, may lead to different elements of the notice taking effect at different times.

Government Amendments 94 and 95 propose a minor change to subsection (7) of the clause to make it clear that, where appropriate, a notice will permit different steps required in the notice to be taken at different times. The amendment will provide clarity to operators and ensure that the Bill reflects what needs to happen in practice. The Government propose a further minor amendment to the notice-giving provisions, this time to Clause 229, which provides for the Secretary of State to vary or revoke technical capability notices and national security notices.

Amendment 106 reads across provisions in Clause 228 that provide for the primacy of national security notices over aspects of the Communications Act 2003. The amendment does not change the effect of the provision but would make explicit that, when a national security notice is varied under Clause 229, the obligations in the notice as varied continue to have primacy over obligations imposed by Part 1, or Chapter 1 of Part 2, of the Communications Act 2003. The amendment replicates a provision previously provided for in the Telecommunications Act 1984, as amended by the Communications Act 2003, and removes any ambiguity about how the obligations set out in a national security notice as varied relate to those provided for in relevant parts of the Communications Act 2003.

Lastly, the Government propose Amendments 107, 110, and 111 to Clause 230. This clause makes provision for a person to request a review of the requirements imposed on them in a technical capability notice, or a national security notice. A person may refer the whole or any part of a notice to the Secretary of State for review after a notice is given or varied. The Government amended the Bill in the other place to provide for the double lock to be applied to the giving of notices. This means that a judicial commissioner must approve the Secretary of State’s decision to give a notice. The amendments that we are now considering would revise the review process to reflect this new role.

The proposed revised process is as follows: before reaching a decision on the outcome of the review, the Secretary of State must consult a judicial commissioner and the technical advisory board. The technical advisory board, a group of experts drawn from telecommunications operators and the intercepting agencies, will be required to advise on the technical feasibility of the requirements set out in a notice and the costs. The judicial commissioner will consider the requirements imposed by the notice on proportionality grounds.

As was previously the case, the judicial commissioner and the technical advisory board will be required to provide an opportunity for the person to whom the notice has been given and the Secretary of State to present evidence or make representations. The conclusions of the judicial commissioner and the board will be reported to the person and the Secretary of State. After considering these conclusions, the Secretary of State may decide to confirm the effect of the notice, vary the notice or withdraw it. Where the Secretary of State decides to confirm the effect of a notice or vary a notice, the Investigatory Powers Commissioner must approve the decision. Until the commissioner has approved the review decision, there is no requirement for the person who has referred the notice to comply with the specific obligations under review.

These amendments will strengthen the review process and will properly reflect the role of a judicial commissioner in approving the decision to give a notice. I hope the Committee will feel able to accept these amendments, and I beg to move.

[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have three amendments in this group. As a means of probing concerns about both national security notices and technical capability notices, we are suggesting that Clauses 225 and 226 stand part of the Bill, but we propose, in Amendment 92, that the provision in Clause 226(5)(c),

“obligations relating to the removal by a relevant operator of electronic protection applied by or on behalf of that operator to any communications or data”,

be deleted. These provisions are some of the most concerning for communications companies and the technology sector in the UK as they appear to provide open-ended and unconstrained powers, although I accept that the amendments that the Government have put forward today, as outlined by the Minister, provide significantly more oversight than was originally suggested in the Bill.

National security notices can require a communications provider in the UK,

“to carry out any conduct, including the provision of services or facilities, for the purpose of”—

this is in Clause 225(3)(a)(i)—

“facilitating anything done by an intelligence service under any enactment other than this Act”.

So the power is not limited to facilitating the use of powers under the Bill but any other legislation as well. The power is to do anything that the national security notice requires.

Technical capability notices enable the Government to require communications operators to comply with any “applicable obligations” specified in the notice, and the recipient must not only comply but must not disclose that they have been served with the notice, seemingly including, under Clause 226(5)(c), to remove encryption. However necessary or proportionate such notices may be—and I accept that, with the double lock now in place, that will be tested—there could be a suspicion that UK communications companies and the UK technology sector are subject to such notices, undermining customer confidence in the security of the network or device that they are using.

Although such a notice may be served to persons outside the UK, and may require things to be done outside the UK, such notices are not legally enforceable outside the UK. As well as undermining public confidence in the security of UK networks and technology, such notices have the potential to act as a competitive disadvantage to UK technology businesses. Instead of the power to force a company to remove encryption from a whole service or technology, alternative and more targeted powers should be used instead.

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For all the reasons I have outlined, these amendments are unnecessary and undermine the important principle that there should be no guaranteed safe spaces online for terrorists and criminals to communicate.

[Lord Paddick]

Can the Minister comment on the fact that increasingly, encryption is end-to-end, and can he say whether national security notices and technical capability notices would be of any use in circumstances where people were using end-to-end encryption? Can he also comment on a suggestion that instead of these notices, targeted equipment interference would be more useful in that it could deal with the problem of end-to-end encryption?

[Earl Howe]

Certainly, targeted equipment interference is, if you like, the next step should interception not be possible for any reason. However, I will answer the noble Lord’s first question, on end-to-end encrypted services. We start from the position that we do not think that companies should provide safe spaces to criminals to communicate. They should maintain the ability, when presented with an authorisation under UK law, to access those communications. We will work with industry to ensure that, with clear oversight and the legal framework I have in part alluded to, the police and intelligence agencies can access the content of terrorists’ and criminals’ communications when a warrant has been approved in the usual way.

We will of course consider what steps are reasonably practicable for an individual telecommunications operator, taking account of a range of factors, including technical feasibility and likely cost. We recognise that what is reasonably practicable for one telecommunications operator may not be for another, so any decision will have regard to the particular circumstances of the case. However, I cannot go into our relationships with individual companies, as the noble Lord will understand. It is important to understand that the Bill does not ban encryption or do anything to limit the use of fully encrypted services.

Investigatory Powers Bill

Lord Paddick Excerpts

Monday 11th July 2016 Lords Chamber

I think that has addressed all the amendments that I have down in this group. I will listen with interest to the Government’s response. From that response I hope to form a view about whether the amendments I have put down have real weight and merit or whether the Government can provide a satisfactory answer to the concerns behind them. I beg to move.

[Lord Paddick (LD)]

I shall speak briefly to the amendments set out by the noble Lord, Lord Rosser, about co-operation with companies based oversees. A real concern to multinational companies is a conflict of law between the country in which they are based and the UK. That concern has been expressed to us as well. As we go through the Bill, we will see that co-operation between countries is increasingly important. As communication moves from cellular communication to communication using the internet, many of the companies that people use to communicate with each other—Facebook, WhatsApp and other platforms of that sort—are based in the United States. The more warrant authorisation processes are harmonised, the more there can be international agreements between countries and the more success we will have in securing communications data and intercept evidence as a result of people moving from cellular to the online environment. I generally support what the noble Lord, Lord Rosser, said about the importance of resolving these issues and forging as many agreements as possible with countries, particularly those where these widely used communications platforms are based.

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

My Lords, I shall begin by addressing the amendments which relate to the serving of warrants and the giving of notices to overseas telecommunications operators. The first, Amendment 63, appears to remove the ability to serve a warrant outside the United Kingdom when the United Kingdom has entered into an international agreement with the country where that person or company is established. Perhaps that was not the intention. It seems counterintuitive to prohibit the service of a warrant on a person outside the United Kingdom when they are based in a territory with which the United Kingdom has an agreement which expressly provides for the service of warrants overseas. I wonder whether it was intended to do the opposite and provide that a warrant might be served on a person outside the UK only pursuant to a relevant international agreement.

In any event, it is important to remember that, although discussions are ongoing, there is currently no international agreement between the United Kingdom and the United States. As the Home Secretary has previously stated, the UK and United States Governments have begun considering a framework under which US-based communications service providers could disclose data directly to the United Kingdom for serious criminal and counterterrorism investigations in response to a UK order requesting the content of the communications—that is, a warrant. We are eager to press forward with developing an agreement. In response to the observations of the noble Lord, Lord Rosser, I can say that timetabling will depend on changes to the relevant US domestic legislation, a matter to which the United States Attorney-General recently referred. But it is not possible to give a more exact timetable so far as that is concerned.

Taking up the point of the noble Lord, Lord Paddick, of course it would be beneficial to all concerned that we should achieve some form of international agreement with regard to these matters, and it is hoped that the agreement with the United States might provide a template to take this forward. But let us accept that we are at a very early stage.

It is important to be clear that any company complying with warrants under an international agreement will not face enforcement action. I am perfectly content to put that important point on record for the noble Lord, Lord Rosser, who opened by explaining that these were essentially probing amendments, and I appreciate that. However, it is also important to explain that such agreements will not by themselves require a company to comply with a United Kingdom warrant. Even when an international agreement is in place, it remains vital that the Bill continues to exert extraterritoriality in relation to interception warrants. This also provides the legal certainty that some companies have been asking for.

Amendments 64 and 65, made to Clause 41, would set out that it would not be reasonably practicable for an operator outside the United Kingdom to comply with a warrant if that involved acting contrary to any laws or restrictions in the jurisdiction in which its principal office is located. These amendments are unnecessary because subsection (5) already makes it clear that, in determining whether it is reasonably practicable for a company to comply with a warrant, any requirements or restrictions under the law of the territory in which it is based must be taken into account. I do not want to quote the matter at length, but I will just refer to the relevant provision. In Clause 41(5), the matters to be taken into account include,

“any requirements or restrictions under the law of that country or territory that are relevant to the taking of those steps, and … the extent to which it is reasonably practicable to give effect to the warrant in a way that does not breach any of those requirements or restrictions”.

Therefore, it appears that this issue is already addressed. Indeed, what is said in the Bill replicates the existing position under the Regulation of Investigatory Powers Act 2000, as amended by the Data Retention and Investigatory Powers Act 2014.

I believe that the intention of Amendment 65A is to provide additional protections for staff employed in the United Kingdom by telecommunications companies whose principal offices are established overseas. Again, this additional language is unnecessary, and I will seek to explain why. In respect of interception warrants, the Government have already amended the Bill in response to concerns from overseas companies to make it clear that a warrant must be served in such a way as to bring the contents of the warrant to the attention of a person who is capable of providing assistance in relation to it. Clearly, an employee based in the United Kingdom who has no access to relevant information would not be such a person, as they would not be capable of providing the assistance required. The concern that enforcement action will be taken against junior local employees is also misplaced, since it is the telecommunications operator, rather than any individual, who is subject to the duty to provide assistance. I also make the point that it would not be in the interests of the relevant agency to serve a warrant or a notice in such a way that meant it could not be complied with quickly and efficiently. But the broader point is that if there is a conflict between United Kingdom law and the internal authorisation processes of an individual company, then of course United Kingdom law must always take primacy.

Amendments 104 and 105 would permit a person not to comply with a technical capability notice if the notice would require the person to act in a way contrary to any law or restriction in their country or territory. This amendment reads across provisions from other parts of the Bill—those relating to interception warrants and targeted communications data requests, as the noble Lord, Lord Rosser, noticed—but it does so inappropriately.

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Moved by

[Lord Paddick]

26: Clause 17, page 13, line 31, leave out “or organisation”

[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have Amendments 26 to 31 in this group. Under Amendment 31, we have concerns about the breadth of warrants. These warrants are described as targeted interception warrants or targeted examination warrants. Noble Lords will no doubt recall that targeted examination warrants relate to where a bulk interception has resulted in coming across content that belongs to a UK citizen and, therefore a targeted examination warrant is required in those circumstances. Clause 17(1)(a) provides that a targeted interception warrant or a targeted examination warrant may relate to,

“a particular person or organisation”.

An organisation could cover hundreds, if not thousands, of people. I am indebted to my noble friend Lady Hamwee, who tells me that it could, in fact, relate to the National Trust—I am not sure about horticultural terrorism, but they have more than 1 million members. We are probing whether it is appropriate to have a targeted interception warrant that is targeted at an organisation, particularly when in Clause 17(1)(b), it says that such warrants can only apply to,

“a single set of premises”.

The potential contrast between the number of people who might be affected in terms of an organisation being targeted by a targeted interception warrant but only a single set of premises seems stark.

Similarly, Clause 17(2)(b) says that such a warrant may relate to,

“more than one person or organisation”,

so again it is very broad. The number of people––potentially innocent people––caught up in such a targeted interception could be extremely large.

Amendment 27 relates to Clause 17(2)(a), whereby,

“a group of persons who share a common purpose or who carry on, or may carry on, a particular activity”,

can be targeted by an interception warrant. To narrow the potential for this to affect a large number of individuals, the amendment would require each person to be named or identified using a unique identifier. While we accept that with, for example, members of a gang involved in drug dealing, one may not know the names of the individuals concerned, one might from surveillance footage be able to accurately describe the individual whom one wants to target by means of that warrant. A similar argument is suggested by Amendment 29 in relation to Clause 17(2)(b).

Amendment 30 relates to Clause 17(2)(c) and queries the issuing of warrants for “testing or training activities”. While Clause 17(3) defines what such activities are, it does not seem clear to us why it would be necessary to issue a targeted interception warrant to test equipment or train individuals in its use. One would have thought that, if it was a training or testing exercise, it could be done with the consent of whoever is being targeted by the training or testing activities. Amendment 31 therefore suggests that Clause 17(3), in relation to “testing or training activities” be deleted. I beg to move.

[Lord Keen of Elie]

My Lords, some of these amendments were discussed in the other place. They would remove the ability of the warrant-requesting agencies to apply for a warrant against an organisation; they would require a warrant to name or identify each individual involved in an operation, and they would remove warrants for testing and training activity.

As was set out in the other place, it is important that those responsible for keeping us safe have the powers they need. We consider that the amendments would undermine those necessary powers, but I appreciate that the noble Lord is advancing essentially probing amendments and I respond in that spirit.

Let me start with the amendment regarding unique identifiers. As was explained in the other place, it is not always possible at the outset of an investigation to know or have identified all the individuals who may be subject to a warrant during that investigation. When a warrant is granted against a kidnap gang, for example, the Secretary of State may not know that there are four members of the gang rather than three. The ability to grant a warrant against the gang to establish its size and to identify co-conspirators is precisely why RIPA provided for so-called “thematic” targeted warrants. They are an invaluable tool in allowing the agencies to investigate complex or fast-moving threats, and it is important that we do not undermine their ability to use that tool.

I reassure the noble Lord, Lord Paddick, that the Bill already provides at Clause 29(8) that the warrant has to specify, for example, the phone numbers to be intercepted. Furthermore, Clause 29(4) provides a safeguard for warrants that relate to a group of persons who share a common purpose or who carry on a particular activity—for example a paedophile network—by requiring that the warrant must name or describe as many of those persons so far as is reasonably practicable. I am afraid that I do not accept the analogy with the National Trust—I do not consider it apposite at all.

It is already the case that the warrant will name or describe particular people whose communications are to be intercepted as they become known over the course of the investigation. This is an important safeguard that will assist the oversight of thematic targeted warrants. It is therefore in these circumstances that I suggest that the amendment is not necessary.

Perhaps I may move on to the amendments that seek to remove the ability to grant a warrant against an organisation. Such a change would be operationally damaging and is, moreover, unnecessary. The Bill and the statutory code of practice impose strict limits on the issue of warrants, including in relation to organisations. Such warrants are not open-ended. Their scope must be sufficiently limited that the Secretary of State can properly assess the necessity and proportionality of the interference. Further, under the Bill a judicial commissioner will need to approve the Secretary of State’s decision. In those circumstances the Bill will not allow for overly broad warrants to be issued.

I turn finally to testing and training warrants. The amendments would remove the ability to apply for a warrant for testing or training purposes. Again, I suggest that that would be damaging operationally and would result in a consequent reduction in safeguards. It is vital that those who are authorised to undertake interception are able to test new equipment and to make sure that those responsible for using that equipment are properly trained in its use. Of course there is an element of systems here in the context of the equipment. While it is possible for some testing of equipment to take place in a controlled environment, it is sometimes necessary to test equipment outside of controlled environments to ensure that it will work in real-life situations. There are therefore strict controls which govern the handling of material obtained in this way during such tests. However, we believe that it is right that it should be possible to test this equipment in scenarios where it can be checked that it is working effectively and to help ensure that the users are operating it correctly. Without the ability to test equipment, we will increase the risk of mistakes being made where individuals are not able to receive adequate training in the use of equipment.

The warrant application process in these circumstances allows the Secretary of State to understand the potential risk that communications will be intercepted incidentally to the purpose of the testing or training, and to agree the measures to be taken to reduce the chances of communications being accidently intercepted. There are clear safeguards in place to protect the privacy of citizens. Accordingly, I invite the noble Lord to withdraw his amendment.

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[Lord Keen of Elie]

A thematic targeted warrant will be granted only in circumstances where the Secretary of State is satisfied that it is necessary and proportionate. None of the examples cited by the noble Lord comes within a hundred miles of that.

[Lord Paddick]

I am grateful to the noble and learned Lord for his explanation and I am reassured to some extent by, for example, some of the provisions he highlighted in Clause 29(8) and (4). I understand that in fast-moving situations such as a kidnapping it may be necessary to add people to the warrant or to encompass additional individuals who are not specifically named on the warrant. However, I wonder whether some safeguards can still be provided in slower-moving situations, or whether, as in the case where there are provisions for the urgent issuing of warrants, those provisions could be used in these cases.

As for the strict limits on the targeting of organisations, I accept, as I notice the Labour Front Bench also accepts, that these warrants must be necessary and proportionate, and that they provide some safeguards against overreaching in the use of these warrants. I am still puzzled about training and testing warrants. I accept that new equipment and individuals need to be trained in real, live situations, but I am a little concerned about who the individuals and organisations are that might be targeted in these training exercises, bearing in mind that the whole suggestion is that the normal provisions of proportionality and necessity, in terms of suspicions that these individuals are up to no good, would not apply in these situations. Therefore, what is learned? What privacy is being intruded into in the course of these training and testing activities?

My concerns remain about some of those areas, but I am reassured by other things that the noble and learned Lord has said and I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

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Moved by

[Lord Paddick]

32: Clause 19, page 14, line 30, leave out “The Secretary of State” and insert “A Judicial Commissioner”

[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have Amendments 32 to 36 in this group. These amendments seek to probe the Government’s position and how far they might be prepared to go in adopting, for example, the recommendations that David Anderson made in his report about removing the Secretary of State from the issuing of targeted interception and examination warrants and replacing the Secretary of State, as the person who decides on these warrants, with a judicial commissioner. The volume of warrants that the Home Secretary, for example, has to sign amounts to as many as 10 a day. We are relieved that she does not now have the additional burden of having to run for leader of the Conservative Party, but one can imagine that to give proper consideration to 10 warrants a day is a significant undertaking, in addition to her other responsibilities.

In non-contentious cases, where there is no political aspect, such as law enforcement warrants, where one is dealing with serious crime—with drug dealers, for example—it is difficult to understand why one would need the Secretary of State to consider these issues. We obviously accept that there may be cases where there is political sensitivity, even in the case of serious crime, and it may be that the Bill can be amended to allow either for the judicial commissioner or even the applicant for the warrant to refer the matter to the Secretary of State in those cases. I also accept that in cases of national security—in cases where the security services, for example, are seeking a warrant, particularly where they may be looking at interception of foreign communications, even foreign diplomatic communications—there is a definite need for the Secretary of State’s involvement. However, as I say, the thrust of this group of amendments is to explore why the Government insist on the Secretary of State being involved in 75% of the warrants that, for example, the Home Secretary signs when those warrants appear to be non-contentious and not politically sensitive but simply to do with law enforcement and serious crime. I beg to move.

[Lord Pannick (CB)]

I support what the noble Lord, Lord Paddick, has said, and I too would be grateful for an explanation of why it is necessary or appropriate for the Secretary of State to be involved in the issuing of warrants in relation to non-contentious matters. My understanding—and I should be grateful if the Minister can deal with this—is that the Bill will impose those responsibilities on the Secretary of State in relation to basic policing functions, even though, under existing law, the Secretary of State has no role in the issuing of warrants in such circumstances.

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[Earl Howe]

I should be happy to write to the noble Lord on that point.

[Lord Paddick]

I am grateful to the Minister for his explanation. I did say that the amendments were probing ones and suggested that national security and politically sensitive issues—as with the Lee Rigby case, to which he referred—would have to be outside this provision. The fact is that in 2014 the Home Secretary personally authorised 2,345 interception and property warrants and renewals, which is about 10 a day. Even David Anderson was shocked by the number of warrants that the Home Secretary had to personally sign, which was why he came up with his recommendation. As the noble Lord, Lord Pannick, said, our understanding is that the number of warrants which the Secretary of State will have to sign will increase as a consequence of this legislation. David Blunkett, who has written of his time as Home Secretary, said that:

“My whole world was collapsing around me. I was under the most horrendous pressure. I was barely sleeping, and yet I was being asked to sign government warrants in the middle of the night. My physical and emotional health had cracked”.

I am sure that the current Home Secretary is more resilient than the noble Lord, Lord Blunkett, was in those circumstances.

Another issue, which I spoke about in the previous set of amendments, is the importance of international collaboration, particularly with the United States. I reinforce what my noble friend Lord Strasburger said. In America, federal investigative and law enforcement officers are generally required to obtain judicial authorisation for intercepting wire, oral and electronic communications. A court order must be issued by a judge of a US district court, a US court of appeals or a FISA judge. If we are to have these international co-operation agreements, again, as David Anderson pointed out in his report, it is important as far as possible to harmonise between different countries the authorisation levels of the system of authorisation. I will read what the Minister has said in his response and I agree that the amendments as drafted go too far, but this is something that we can hopefully discuss between now and Report. If not, we may have to bring this matter back on Report. At this stage, I beg leave to withdraw my amendment.

Amendment 32 withdrawn.

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Moved by

[Lord Paddick]

37: Clause 20, page 16, line 11, at end insert—
“( ) A warrant may be considered necessary for the reasons given in subsection (2)(b) or (3) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed.”

[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have Amendments 37, 121, 153 and 161 in this group. Basically, these amendments relate to Clause 20, “Grounds on which warrants may be issued by Secretary of State”. We suggest an additional paragraph, where a warrant is issued for the purposes of preventing or detecting a serious crime, or in the interests of the economic well-being of the UK,

“only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed”.

I refer to the briefing provided by Liberty, which points out that one of the greatest problems, recurrent in every power in the Bill, is the lack of a reasonable suspicion threshold for surveillance warrants to be authorised for the purposes of preventing and detecting crime. It states that:

“Intrusive powers can be authorised in order to ‘prevent and detect serious crime’, or even (in the case of communications data) to collect tax, prevent disorder, or in the interests of public safety. However, these general purposes are left wide open to broad interpretation and abuse without requiring a threshold of suspicion”.

The briefing says that a requirement of reasonable suspicion, when the purpose to prevent and detect serious crime is invoked, would prevent the potential abusive surveillance of law-abiding citizens that has regrettably been seen in the past.

The threshold of reasonable suspicion has long been an important safeguard for citizens and law enforcers against the risk of arbitrary use of police powers. The necessary and proportionate standard invokes an important assessment of the extent of the intrusion, but it does not, as we read it, require a burden of proof. Perhaps the Minister could explain how or why the “reasonable suspicion” test should not be applied to the various powers covered in our amendments. I beg to move.

[Lord Keen of Elie]

My Lords, as the noble Lord, Lord Paddick, explained, these amendments seek to provide that certain authorisations can be given only where there is a reasonable suspicion that a serious criminal offence has been, or is likely to be, committed. It is almost like trying to compare apples and oranges. The construct of the Bill is not around reasonable suspicion. It is around necessity and proportionality. They achieve the same goal, but in different ways. These amendments are not necessary and, in the case of communications data, would undermine the ability of law enforcement and other public authorities to catch criminals and to keep the public safe. First, let me assure the Committee that for a warrant to be issued for the prevention or detection of serious crime, a sufficiently compelling case will always be required; a speculative warrant could never be approved under Clause 20. The same is true for authorisations to obtain communications data for the purpose of preventing or detecting crime. So these amendments respond to a concern that, I suggest, is misplaced.

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[Lord Keen of Elie]

For example, in the case of a missing person there may be no reasonable suspicion but it may still be necessary and proportionate to grant a warrant in those circumstances. I hope that that is concrete enough.

[Lord Paddick]

I am very grateful to the Minister. While I accept that there are some cases where the test of reasonable suspicion is not required—he gave the very good example of a missing person—I still wonder why the Government are averse in all circumstances to having a “reasonable suspicion” test. If I understand what he is saying, I accept that it is implicit in the necessity provision of issuing a warrant. At this stage I beg leave to withdraw the amendment.

Amendment 37 withdrawn.