Investigatory Powers Bill

Lord Paddick Excerpts

Monday 11th July 2016 Lords Chamber

Moved by

[Lord Paddick]

19: Clause 4, page 4, line 23, leave out “, at a relevant time,”

[Lord Paddick (LD)]

My Lords, my noble friend Lady Hamwee and I have Amendments 19 and 66 in this group. The relevant part of Clause 4 that we are talking about here deals with the definition of “interception”. Clause 4(1)(b) talks about interception being,

“to make any content of the communication available, at a relevant time”.

It is the expression “at a relevant time” that we wish to probe. Clause 4(4) describes “relevant time” as being during transmission, or before or after transmission. For us, that begs the question: what does “relevant time” therefore mean? Why does it have to be stated that “relevant time” is necessary, bearing in mind that it seems to cover every time before, during and after transmission?

I turn to Amendment 66. Clause 42(1) talks about interception being effectively lawful if both,

“the sender and the intended recipient … have each consented”.

This amendment simply suggests that that consent should perhaps be in writing. I beg to move.

[Viscount Hailsham]

My Lords, I would like to raise two points, if I may, about Amendment 66. I entirely agree with the suggestion that the consent should be in writing, and I would rather hope that the Minister will give us some reasons why it should not be, because on the face of it, it is an extremely sensible suggestion. As we all know, there is sometimes a certain degree of opaqueness regarding what people have or have not done. Looking at Clause 42, to which Amendment 66 applies, I have some difficulty in understanding the relationship between subsections (1) and (2). I am not sure why subsection (2) is there, given the language contained within subsection (1). Perhaps my noble friend can help us on that.

--- Later in debate ---

[Earl Howe]

I shall gladly write to the noble Baroness on that point. I can also say, for the benefit of the Committee, that I shall look into the drafting of Clause 45, including the reference to other enactments.

[Lord Paddick]

My Lords, I am very grateful to those who have contributed to this short debate, and very grateful to the Minister. On Amendment 19, I think that I am right in saying that the issue around phone hacking was on whether a voicemail that had not yet been listened to was still in the course of transmission, whereas a voicemail that had already been listened to was not in the course of transmission. That was a reason that the police gave at one stage for not investigating some of the phone hacking. I find the wording rather curious. I should have thought that it would be sufficient to say that communication included communication stored prior to or following transmission. But I am not a lawyer—I accept that.

I accept what the Minister says on written consent, on Amendment 66, but surely there are other ways in which consent can be explicitly given. For example, if a telephone conversation was being recorded, both parties to that conversation could say on tape, as it were, that they consented to the interception of that conversation. Perhaps we could give that some further consideration. I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

--- Later in debate ---

Moved by

[Lord Paddick]

23: Clause 13, page 10, line 16, leave out “the intelligence service considers that”

[Lord Paddick]

My Lords, the amendment is in relation to the mandatory use of equipment interference warrants. The wording of the relevant section says that security services must secure an equipment interference warrant if the “intelligence service considers that” the conduct would constitute an offence under the Computer Misuse Act. Surely, it must be something more than just whether the particular intelligence officer considers that the conduct would constitute an offence under that Act. Surely, an equipment interference warrant must be obtained because, otherwise, it would constitute an offence, rather than simply if the intelligence service considers that it is.

Amendment 24 makes a similar point about restrictions on the use of Section 93 of the Police Act 1997. In this case it states that a “targeted equipment interference warrant” is required,

“if the applicant considers that the conduct would … constitute”,

an offence under the “Computer Misuse Act 1990”. I would argue that exactly the same considerations apply as with Amendment 23. I beg to move.

[Earl Howe]

My Lords, the amendments in this group seek to change the language used in relation to the equipment interference regime and Computer Misuse Act offences. Clause 13 provides that an equipment interference warrant under the Bill is mandatory if the intelligence service considers that the conduct would constitute a Computer Misuse Act offence and there is a British Islands connection. Similarly, Clause 14 provides that law enforcement agencies will be unable to authorise this type of equipment interference under the Police Act 1997 where the applicant considers that the conduct would constitute an offence under the Computer Misuse Act. This is an important safeguard.

The language in Clauses 13 and 14 reflects the fact that at the point of application the equipment interference agency may not be able to say with complete certainty whether the proposed interference will constitute an offence under the Computer Misuse Act. For example, when an MI5 officer is handed a compact disc by a source, it may not be clear whether the disc belongs to the source who intends the officer to use the disc, in which case the Computer Misuse Act would not be engaged, or whether it is owned by another person who does not intend the officer to access the disc, in which case the Computer Misuse Act would be engaged. In these circumstances, the applicant will need to consider the possibility of an offence occurring, consult legal advisers, where unclear, and seek the appropriate authorisation, if required. The language of the Bill reflects that it may not be certain whether the Computer Misuse Act is engaged. The language in the Bill and the code of practice anticipate that applicants will err on the side of caution.

Finally, and crucially, all equipment interference will be overseen by the new Investigatory Powers Commissioner, ensuring that there is independent and objective analysis of any decision regarding the possibility of conduct constituting an offence under the Computer Misuse Act. I hope that explanation will be helpful to the noble Lord and explains why this language is in the Bill. I therefore invite him to withdraw the amendment.

[Lord Paddick]

I am very grateful for that explanation. I understand that it may not be certain that something constitutes an offence under the Computer Misuse Act. Where it is an offence under the Computer Misuse Act, does the Bill allow a Security Service agent or law enforcement officer to ignore that provision?

[Earl Howe]

That cannot happen. Without a valid lawful authority, interference with equipment that is prohibited by the Computer Misuse Act will remain illegal. If a member of an equipment interference agency considered that no Computer Misuse Act offence would be committed before beginning an operation but later determined that an offence was likely to be committed, they would be required to seek appropriate authorisation.

[Lord Paddick]

I am very grateful to the Minister. I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, the Joint Committee on the Bill—four Members other than myself, who chaired the committee, are present this evening—met journalists in evidence sessions. The Society of Editors and the National Union of Journalists met with the committee on 14 December last year, and of course many strong representations were made in writing to the Joint Committee on this very subject. The committee eventually recommended that,

“the Home Office should reconsider the level of protection which the Bill affords to journalistic material and sources”.

We recommended that it should be at least equivalent to that afforded by the Terrorism Act 2000 and by PACE, and that the Home Office should take into account the various aspects of the European Convention on Human Rights which affect this aspect of the Bill. I know that the Joint Committee on Human Rights has also made representations to the Government on this matter.

I support the amendment in the name of the noble Viscount, Lord Colville. His proposed new clause deals with wider protection from state surveillance, not just sources—for example, a politically sensitive investigation—in that it covers areas other than simply communications data; for example, equipment interference, and that orders should be sought from a judge, as with PACE. I congratulate the Government, as in Committee in the other place, Clause 73 was introduced, which made welcome changes to the Bill as it then stood. However, I agree with noble Lords who have already spoken that that is not quite sufficient and more needs to be done.

The issue the Joint Committee had to deal with was how precisely you define a journalist these days. It is very different from when I was a young man. With the advanced technology, what or who is a journalist? PACE defines it in some senses in that it at least refers to “journalistic material”. A journalist is,

“any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication”.

Therefore we can overcome these issues.

All the speakers so far have indicated that we are grateful to the Government for what they have done, but more could be done. I do not say that the precise wording of the proposed new clause in the amendment is the precise answer to where we are going, but Ministers—both here and in the other place—have indicated to me over the last couple of months that the Government are willing to look very carefully at how to ensure that journalists are properly protected under this legislation. It is certain that there should be no lessening of protection from what already exists under PACE. I fear that it is possible that that might be the case, unless we go a little further in protecting both the sources of journalists and their investigations.

I therefore hope that, when the Minister winds up, he will give us some joy and will indicate that, by the time we reach Report, the Government will have reconsidered some of these aspects and we will be able to ensure that this particularly important part of the Bill is dealt with properly.

[Lord Paddick]

My Lords, my name is to this amendment and I very much support it. As a former police officer, I feel I have to speak on both aspects of this. The noble Lord, Lord Black, spoke clearly and in detail about the need for very specific safeguards because of the experience that we have had with the Regulation of Investigatory Powers Act. Police have clearly not used legislation in the way that Parliament intended it to be used—that is, to establish who confidential journalistic sources are. I also support what the noble Viscount, Lord Colville of Culross, said about the danger to journalists, particularly camera operators in serious, spontaneous public order situations. This is an area where I have some expertise. At the moment there is a balance as experience has shown that media footage has, in certain circumstances, been useful to demonstrators in terms of misuse or excess use of force by police officers. If this were to change, and the demonstrators felt that material gathered by media operators was under the control only of the police, because of inadequate provisions in the Bill, it could tip the balance and journalists would become a target for violence in such situations.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support Amendment 25 and declare an interest as the mother of a journalist. I also apologise for not having spoken at Second Reading; I was not able to be here. My only concern with Amendment 25 is that it does not go far enough and there is no “reasonable suspicion” test. We must remember that journalists often uncover some pretty heinous crimes and pretty awful stories. While we often talk about the damage they do and the crimes they commit, they also do some incredibly valuable work for our society, so I think this an extremely important amendment.

Investigatory Powers Bill

Lord Paddick Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Paddick (LD)]

My Lords, this is a very complex Bill dealing with very technical matters in places, but we should not be intimidated by that. Nor should we simply say that we must give the police and the security services all the powers they ask for without scrutiny.

It is the responsibility of the police and the security services to ask government for the powers they believe they need in order to be effective. It is our responsibility—the responsibility of Parliament—to balance those requests against the tests of necessity and proportionality. There will always be a tendency for politicians to accede to the demands of the agencies of the state; should crime rise or terrorist acts be perpetrated, politicians could not be blamed if they had given the police and the security services everything they said they needed. Yet this has not always been the case. When the then Labour Government pressed the case put forward by the police for 90 days’ detention of terrorist suspects without charge, Parliament refused. The security services did not ask for such a power. Arguably, it was reasonable to turn down a power that would assist in the prosecution of offenders, provided that it did not affect the security services’ ability to prevent terrorist activity. Yet in this Bill, we face a similar demand from law enforcement for a draconian power that the security services say they do not need.

The Liberal Democrats recognise the vital role the police and the security services play in keeping us safe. We also recognise the need for trust between state agencies and the public, not least to ensure the flow of community intelligence—even more vital as the terrorist threat changes in nature and criminals become more sophisticated. In order to be effective, the police and the security services need to have powers to carry out surveillance, including the interception of communications, the retention and acquisition of communications data and equipment interference. This will involve intrusion into people’s privacy, but unless there is no other practical means of achieving the objective, intrusion into innocent people’s privacy should not be allowed, other than in exceptional circumstances, and even then it should be subject to the highest levels of oversight. Innocent people’s privacy should not otherwise be put at risk, let alone intruded into. Internet connection records—the only virgin territory in the Bill—are going to intrude into innocent people’s privacy.

I do not believe that anyone in this House believes that we do not have a right to privacy, but perhaps I should declare a personal interest in this area, in the example I am about to give. What about 25 years ago, when I was married to my wife, Mary, but I believed I was gay? Should I have been able to keep that situation private? What if someone today was in that position and wanted to research using the internet to get some help and guidance, for fear of talking to anyone and letting the cat out of the bag, like me in those days? This Bill requires internet service providers to record every website that everyone in the UK visits, to store that data for 12 months and to reveal those details to the police without a warrant if they suspect someone of crime. If someone alleged that I roller-skated into a shop, indecently assaulted someone and roller-skated out again—apparently, one of the allegations made against Sir Cliff Richard—details of every website I had visited in the past 12 months could be handed over to the police without a warrant if we allow this Bill to pass as it stands.

It is not too much of a stretch to think that someone might make an allegation against me, as a reasonably high-profile individual, so it would be not too far a stretch to think that I had better not seek confidential advice on the internet, in case it became public. How could it become public? Homophobia has been encountered in the police service, as has unauthorised disclosure of confidential information. “If you have nothing to hide, you have nothing to fear” is not the same as “If you have done nothing wrong, you have nothing to worry about”. Even if the police were to be trusted completely, massive pools—oceans—of data in the custody of private companies such as TalkTalk, one of the internet service providers that will be asked to store such data, would be sitting ducks for hackers, criminals, blackmailers and hostile foreign powers. For example, information that I frequently visited the Age UK and NatWest websites might make me a target for fraudsters trying to trick me into revealing my account details online by claiming to be from the bank, or they might even turn up at my front door, believing me to be frail and easily conned or overpowered.

The RUSI panel set up by Nick Clegg when he was Deputy Prime Minister set out 10 tests for the intrusion of privacy. It is those 10 tests on which our opposition to parts of the Bill is based. Not only should the Bill be measured against the 10 tests, but Liberal Democrat opposition to the Bill should also be measured against them. One of the tests is that there must be transparency: how the law applies to the citizen must be evident. How many people in the UK know that 12 months of their web history—albeit the website that they are looking at rather than any further pages on that website—will be kept in case the police want to see it, as a result of this Bill’s provisions?

The intrusion must be necessary in that there are no other practical means of achieving the objective. The security services MI5, MI6 and GCHQ say that they do not need internet connection records because they can get the information they need by other means.

The intrusion must be proportionate to the advantages gained, not just in cost and resources but also through a judgment that the degree of intrusion is matched by the seriousness of the harm prevented. Internet service providers reckon that this will cost more than £1 billion in set-up costs alone. The measure may not provide the police with the website someone has visited because it is so easy to conceal it. It will not give the police any information about whether, or with whom, someone was communicating without making further inquiry of other companies such as Facebook, because almost all online communication is encrypted. If a serious crime is involved—the Minister listed a range of serious crimes that the Bill is intended to cover, including child sexual exploitation and terrorism—the security services, which do not need internet connection records, are duty bound to assist the police with their inquiries. We therefore need some convincing that internet connection records are both necessary and proportionate.

There are other issues. We believe that the double lock should be only a single lock in the case of law enforcement warrants which need go nowhere near a Secretary of State if there is no political sensitivity, and that there should be a real double lock where there is political sensitivity, not just the application of judicial review principles to the decision of the Secretary of State. How can there be a judicial review process where only one side of the case is presented to the judicial commissioner? Equipment interference is potentially more intrusive than interception and yet law enforcement equipment interference warrants go nowhere near a Secretary of State under the Bill as drafted, whereas security services equipment interference warrants require a Secretary of State’s signature.

The oversight arrangements have a few wrinkles as well. How are we supposed to have faith in the independence of judicial commissioners appointed by the Prime Minister—not necessarily the current Prime Minister—including the Investigatory Powers Commissioner being appointed by the Prime Minister? How can the same body authorise warrants and then audit their issue?

Not only do we support many aspects of this Bill, but the Liberal Democrats when in government called for such a Bill. However, aspects of the Bill cause us grave concern and the Government and law enforcement agencies have failed to convince us of their necessity and proportionality. The “request filter”, for example, conjures up the spectre of a virtual national database, where government can bring together every piece of available personal data held on an individual into one place. In addition, technical capability notices and national security notices have the potential to inflict serious competitive disadvantage on UK suppliers.

Bulk collection of innocent people’s communications is highly controversial and requires the closest scrutiny. But there will not be a call for a blanket ban on bulk collection from this Bench no matter the cost in lives and loss of security; we will take a reasoned and practical approach to these issues. Nor will noble Lords hear the term “snoopers’ charter” from this Bench, other than to condemn it as an inaccurate cliché. There is much to commend the Bill, but there are serious issues that must be addressed.

Child Refugee Resettlement

Lord Paddick Excerpts

Tuesday 10th May 2016 Lords Chamber

[Earl Howe]

My Lords, I am most grateful to the noble Lord, Lord Rosser, who asked a number of questions. The Daily Telegraph picked up the No. 10 statement and misconstrued it. No. 10 said that we would proceed with this programme as quickly as possible and that by the end of the year we will have seen children arriving in this country. That does not mean to say that it will be 31 December before any child arrives.

It is difficult for me to define the estimated timetable because of the need, as specified by the amendment in the name of the noble Lord, Lord Dubs, to consult local authorities before we are in a position to say how many children can be accommodated. I can only assure the noble Lord that we need to take necessary but not undue time to do that, that we are already engaged with the French authorities to ensure that the vulnerable children who I know the noble Lord, Lord Dubs, wants us to prioritise are identified as quickly as possible, and that we will do the same in Greece and Italy.

I cannot, as the noble Lord will therefore surmise, be specific about whether we will admit 300 children before the start of the school year. The very nature of this announcement means that we must take the necessary time to consult others before bringing forward final proposals on how to implement. All I can say is that we will not only implement the letter of this amendment but its spirit, and we will do so enthusiastically and as speedily as we can. Naturally, as I have already emphasised, those children in Calais are likely to be the first candidates.

[Lord Paddick (LD)]

My Lords, Save the Children, following extensive research and consultation, concluded that if the UK took 3,000 unaccompanied asylum-seeking children from within Europe, that would be a fair and proportionate number. I accept, as the Minister said, that there has to be consultation with local authorities, but we also heard earlier this afternoon in this Chamber that charities and other mechanisms can be used to help find homes for these children. Can the Minister tell the House how many of these children the Government intend to take: the smallest number they can get away with or the UK’s fair share?

[Earl Howe]

It is not a question of the smallest number we can get away with. I hope that I have indicated that we are pursuing this amendment in its proper spirit. We have always been clear that we share the objective of identifying and protecting vulnerable refugee children wherever they are—our efforts to date have been designed to do just that—and we have heard many times about the measures that the Government have taken, particularly in the Middle East.

However, we were very clear that setting an arbitrary target, particularly one as high as 3,000, was the wrong approach. We cannot simply wade in and select some children whom we think would be better off in the UK, especially when some local authorities already care for very high numbers of unaccompanied asylum-seeking children—which in some cases is stretching services to breaking point. That is why we believe that the approach of the noble Lord, Lord Dubs, is the right one. We have to consult with local authorities before we can determine the number that we can accommodate, and we must observe the best-interests principle as well.

Armed Forces

Lord Paddick Excerpts

Monday 23rd June 2014 Lords Chamber

[Lord Paddick (LD)]

My Lords, first, I thank my noble friend the Minister for the opportunity for this debate. I congratulate the noble and gallant Lord, Lord Richards of Herstmonceux, on his excellent maiden speech, typical of the high standards of contribution made by other noble and gallant Lords in your Lordships’ House. I have no personal experience in the Armed Forces. My father was a major in the Royal Tank Regiment during the Second World War and spent three years with the Eighth Army, driving the Germans across north Africa and up through Italy. I remember that one thing that the people with whom my father worked subsequently in civilian life said about him was that he was a man of integrity. Certainly, I have the highest regard for members of the Armed Forces and for ex-service personnel, many of whom I served alongside in the police service.

Interestingly, a young police officer who was previously in the Army said that he found a difference in culture between the Army and the police service. His experience was that in the Army, when things went wrong, people stood up and took responsibility and that it was the highest ranking officer who took that responsibility. Sadly, he found in the police service that responsibility was pushed down to the lowest possible level and that there was a tendency to cover things up. I shall not comment on whether that is correct, but that was certainly his experience.

My noble friend Lord Palmer of Childs Hill raised the issue of women in combat roles. Unlike the noble Baroness, Lady Dean of Thornton-le-Fylde, I am not going to leave it to another day to address that issue; I feel that I need to address it today. The noble Lord, Lord Dannatt, talked about women being involved in infantry and the armoured corps, going forward to face extreme violence. He said that he was asking the question whether that was an appropriate task for a woman. I would not dare to argue against the experience of the noble Lord, but I would also want to raise some questions. My noble friend Lord Burnett talked about the great courage of women over the years, but wondered whether in outright combat it would add to the risk, and how it was important to canvass the views of all members of the Armed Forces.

The parallels with women in the police service are worth exploring. It was only three years before I joined the police service that there was a separate women’s police department. They had specialist duties; they worked fewer hours and were not allowed to do night duty unless there were particular special circumstances. They mainly dealt with missing people, women prisoners and children. It was not until 1973 that women were integrated into policing—and then there were further barriers to be broken down.

It was not until 1977 that the first female traffic officer was appointed, 1979 before the first female dog handler was appointed, and even later still before female police officers became involved in riot training. Being involved in a riot situation, as I was in 1981 on the streets of Brixton, is one of the most physically demanding and, arguably, frightening, experiences that you can have as a police officer. You work in a very small team of six officers. However, the police service has decided to include women in that role and there have been no issues with women undertaking it.

Similar arguments were raised in the police service about women undertaking certain roles as were raised about women undertaking combat roles in the armed services. I can think of any number of male police officers who would be very little use to me if I was a police officer policing a brawl in a public house. However, I can think of many female police officers who I would be very glad to see in that situation not just because they might be a calming influence but because they are physically stronger and far more capable of dealing with that situation than many of the male officers I can think of.

I remember talking to a male officer from a flying squad who believed that women should never be allowed to be part of a flying squad because he felt that in a close combat situation involving armed criminals he might be distracted as he would want to look after his female colleagues, and therefore would not concentrate on tackling those criminals. I believe that mindset is from a bygone age and should be condemned for that reason.

Many female officers who carry arms are just as capable as their male colleagues. Indeed, some of them are better shots and, arguably, psychologically sounder than some of their male colleagues. In case noble Lords are concerned that I am talking about a very different situation, I should add that police firearms officers are trained to kill people. They are trained to aim at the biggest target area—the chest area—and are told that, if they take a shot at someone, the almost inevitable consequence is that they will be killed, yet some female officers are firearms officers and are used in these very stressful situations.

No doubt some noble Lords may argue that the situation I have described in the police force is very different from that which pertains in the armed services. However, men and women involved in the police service face life-threatening situations in front-line scenarios, some of which involve firearms. In my experience of more than 30 years in the police force, having women in those front-line scenarios has never to my knowledge caused any problems.

My father was a tank commander. What would he have thought about women in combat situations? He is no longer with us so I cannot ask him, but I believe that he would not have dismissed the idea simply on a point of principle.