Investigatory Powers Bill

Lord Rosser Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Murphy of Torfaen]

My Lords, this part of the Bill concerning Members of Parliament is a hugely important and grave issue, but I think it is probably about right now. As the House and the Minister will know, when the legislation went through the other place, there was a change. Instead of the Prime Minister being informed about a Member of Parliament or of this House having a warrant against them, now the Prime Minister must approve such a warrant. I think that is absolutely right.

There are a couple of points worth making. I agree with the noble Lord, Lord Beith, that the idea of the Speaker of the House of Commons being involved is a very difficult precedent to set, not only because it puts a great burden on the Speaker but because this part of the Bill refers not just to the British Parliament—both this House and the other place—but to the Welsh Assembly, the Northern Ireland Assembly, the Scottish Parliament and, for the time being at least, the European Parliament. If the Speaker was to be involved, surely it would be necessary for the Presiding Officers of those parliaments and assemblies also to be. Frankly, that is something that they would not particularly welcome.

With regard to the point made about the First Minister of Scotland, that same argument applies. If you say that the First Minister of Scotland ought to be involved, surely the First Minister of Wales would have to be involved and, presumably, the First and Deputy First Ministers of Northern Ireland as well—not to mention, for the time being, the President of the European Parliament. I am not sure that would work. Nevertheless, it is important that such matters are raised.

Finally, is the Wilson doctrine obsolete as a consequence of the legislation? Will it be replaced by what is now in the Bill, or does the Wilson doctrine still stand in the sense that it has always referred to a change of policy, rather than to individual people— Members of the House of Commons or whoever—who might be subject to interception? I would be grateful to the Minister if he said, when he responds, whether the Wilson doctrine is now finally dead and buried.

[Lord Rosser (Lab)]

Perhaps I may make a brief comment about Amendments 85A and 85B in the names of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee. We, too, want to hear the Government’s response to the views expressed by the Delegated Powers and Regulatory Reform Committee. I will not go over those views, since the noble Lord, Lord Paddick, has already set them out. In brief, the first is the fact that paragraph 33 of Schedule 8 includes a power to amend the provisions of Schedule 8 itself. The committee said that it needed “a very convincing explanation” of why that was necessary; otherwise, it would find the power inappropriate. The other, as the noble Lord said, concerns the fact that the powers conferred by paragraph 33 of Schedule 8 include a power to amend future enactments whenever passed or made. The committee commented that it felt that such powers were inappropriate. In view of the comments made by the committee, we, like the noble Lord, wish to hear the Government’s response to the committee’s points.

[Lord Keen of Elie]

I will begin with that last point on Amendments 85A and 85B. The Government believe that the power is necessary for the reasons outlined by the noble Lord, Lord Paddick, but we are conscious of the terms of the report made by the Delegated Powers Committee. We are still reflecting on those comments and intend to respond in due course. I hope that that will give some satisfaction to the noble Lord. The matter is still under consideration and no final view has been arrived at.

I now turn back to the matter raised by the noble Baroness, Lady Jones. By way of background, your Lordships will be aware that, last November, the Prime Minister announced additional protections for the communications of Members of Parliament and Members of other legislatures, including the Scottish Parliament and the assemblies. Clause 26 sets out the requirement for the Prime Minister to approve the Secretary of State’s decision to issue a warrant to acquire communications sent by a Member of Parliament or intended for a Member of Parliament. Again, I use the term “Member of Parliament” to embrace Members of the other legislative assemblies referred to by the noble Lord, Lord Murphy.

Amendment 43A would remove the role of the Secretary of State from the warrant authorisation process where the Wilson doctrine is engaged—I will come on to the Wilson doctrine in a moment—which would in fact reduce the safeguards for parliamentarians. In line with the commitment given by the Prime Minister last November, the Bill provides a triple lock where warrants concern a parliamentarian’s communications: they must be authorised by the Secretary of State, agreed by the Prime Minister and authorised by a judicial commissioner.

I will not rehearse again the arguments for the double lock at this point, but it is important to remember that it was endorsed by the Joint Committee of Parliament that scrutinised the draft Bill and that, following amendments made in the other place, it enjoyed cross-party support. The triple lock for parliamentarians simply adds an extra layer of checks to this important process. It is difficult to see what possible benefit would accrue from removing one of those checks—that is, the Secretary of State—which would also serve to undermine the accountability of the Secretary of State to Parliament for the activities of the agencies that the Secretary of State oversees. In view of that, I respectfully invite the noble Baroness to withdraw her amendment.

Amendment 45 would provide a role for the First Minister of Scotland in approving warrants to acquire communications sent by or intended for a Member of the Scottish Parliament. However, we do not consider that it would be appropriate for the First Minister to have a role in approving a decision taken by the Secretary of State on what is a reserved matter.

As to the operation of serious crime warrants, which the noble Lord, Lord Paddick, might have had in mind, particularly in Scotland, it is of course for Scottish Ministers to determine what additional safeguards they wish to provide in relation to parliamentarians. That is a devolved matter within their competence, and the same may in due course apply in the context of the Welsh Assembly—or, indeed, any other assembly that is set up.

The effect of Amendment 44 would be to provide for the Prime Minister to inform the relevant legislature that such a warrant or warrants has or have been issued—a point raised by the noble Lord, Lord Beith. Noble Lords will be aware that the Wilson doctrine, as it is termed, followed from a statement made by the then Prime Minister that, as a general policy, there would be no tapping of MPs’ telephones—but that, if there was a need to make a change to this general policy, the Prime Minister would, at a time of his choosing and when the national security situation allowed, make a Statement in the House. That is what is encompassed within the Wilson doctrine.

In a Written Ministerial Statement last November, the Prime Minister again confirmed that the Wilson doctrine continued to apply. He went on to explain the Government’s position on the Wilson doctrine and how it would apply in the 21st century. In his Statement, the Prime Minister was clear that the Wilson doctrine does not place an absolute bar on the interception of parliamentarians’ communications and confirmed that he would be consulted should there ever be a requirement to target a parliamentarian under a warrant issued by a Secretary of State. As has been noted, particularly as a result of the changes in the other place, the Bill now goes further by providing that the Prime Minister must provide explicit authorisation for a warrant to target a parliamentarian’s communications.

I understand that every Administration since 1966 has confirmed that the Wilson doctrine remains in place. This Government have done so on numerous occasions in Parliament. The doctrine includes the Prime Minister’s commitment to inform the relevant legislature, at a time of his choosing and when national security allows, should there ever be a change to the general policy. There has been cross-party agreement on this issue for more than 50 years. In view of the Prime Minister’s statement, and the stringent safeguards in the Bill, which go further in statute than was previously provided for, no further statutory provision is considered necessary.

--- Later in debate ---

If we are to have a warrant system that is subject to any sort of oversight, it should test whether individuals or individual premises ought to be the subject of surveillance. It is not a minor modification to subject an individual or a set of premises to interception powers: it is actually the entire purpose of the system, and is fundamental to the whole operation. Allowing the state to add an intercept without prior judicial authorisation seems to us to undermine the whole scheme and to circumvent the most basic safeguard provided by the Bill. I beg to move.

[Lord Rosser]

I will make just one very brief point. These amendments on modifications relate to an area where the system could—and I use the word “could”, not “will” or “would”—be abused, in the sense of a significant modification being made to a warrant perhaps not having to go through the kind of process one would have to go through with the initial warrant. I hope the Minister might respond in a rather wider context than the specifics of the amendments and set out why the Government believe, as far as the Bill is concerned, that the modification process cannot be used to achieve a major change in a warrant without having to go through the proper procedures of getting judicial authorisation. To some extent, I think that what lies at the heart of this issue on modifications is wanting an assurance, which can be given really only by spelling out the process that would prevent the system being abused in this way.

[Lord Keen of Elie]

Perhaps I might begin with that last point. The whole structure of the Bill involves checks and balances. At the end of the day the Investigatory Powers Commissioner will carry out auditing and oversight functions to ensure that the requirements in respect of warrants and their modification have been adhered to. Therefore, it is a question of looking at the overall structure and functioning of the warranty system under the Bill. It is not spelled out in any one particular clause. I just make that observation at this stage.

Amendments 53, 55, 56 and 57 seek to provide that all modifications to a warrant must be authorised by a judicial commissioner. In our view, that is neither necessary nor appropriate. Clause 32 creates a carefully constructed regime, differentiating between major modifications and minor modifications. A major modification is one which adds or varies the name or description of a person, organisation or set of premises to which the warrant relates. A modification which adds or varies a factor identifying the communications described in the warrant will be a minor modification; for example, a minor modification might be adding a new telephone number for a known target. In addition, a modification that removes something from a warrant, and so reduces the conduct authorised by it, is a minor modification. The Bill makes this sensible distinction between major and minor modifications. In neither case is the judicial commissioner required to authorise the modification because the requirement to modify warrants to keep them up to date is first and foremost a safeguard.

I will explain how major modifications will operate under the legislation. The Bill provides for major modifications to be made only to so-called thematic targeted warrants. Current statute, such as the Regulation of Investigatory Powers Act 2000, allows for the issue of such warrants. They may be granted against, for example, the members of a kidnap gang. Thematic targeted warrants are invaluable in complex or fast-moving investigations. The Bill serves to put them on a clearer footing and to strengthen the safeguards that apply to them.

These warrants cannot be open-ended. Their scope must be sufficiently defined for the Secretary of State to be able meaningfully to assess whether the action is necessary and proportionate—the relevant statutory test. The Bill introduces a new safeguard, requiring the warrant to be modified to include names or descriptions of the subjects of the warrant, as far as it is reasonably practicable to do so, as the investigation progresses. This will assist the Secretary of State and the judicial commissioner in overseeing the warrant. There would be no benefit in having a commissioner authorise a modification that is being made in the first place only to inform his own oversight of the warrant. It would introduce unnecessary bureaucracy and the Bill already makes it clear that major modifications that engage the Wilson doctrine or legal privilege will be subject to the full double lock.

In our view, providing a role for the judicial commissioner in authorising a minor modification is even more superfluous. A minor modification caters for those circumstances where the subject of a warrant changes his phone or starts using a different email address. Those under investigation regularly change their phones or use different communications services in a bid to evade detection. The speed and volume of modifications of this nature are such that a role for the judicial commissioner in authorising the modification would cause the operational agility of the system to slow almost to a halt. This would inevitably have an impact on the ability of our law enforcement and security and intelligence agencies to perform their core function of protecting the public.

Clause 33 provides clear definitions of what constitutes a senior position in a public authority—that is, the authority that can deal with modifications—and an example is someone at the level of brigadier in the Ministry of Defence. We believe it is entirely appropriate that a person holding such a position is able to make a minor modification; for example, to determine that a new means of communication, such as a telephone number, being used by the person under investigation should be added to the warrant. Of course, we recognise the importance of ensuring the process for making modifications is as rigorous as it can be. That is why the Bill was amended in the other place to apply the necessity and proportionality test to minor modifications, as well as major modifications. Accordingly, I invite the noble Baroness to withdraw Amendment 53.

Amendment 54 would limit the circumstances in which a minor modification may be made to an interception warrant. It would have the effect that the only modifications that could be considered minor would be ones that either remove something from a warrant or correct an error in the description of a factor. We suggest that the amendment is unnecessary and would undermine the effective operation of the modification process. It would mean, for example, that where the subject of a warrant bought a new mobile phone, simply adding the mobile phone number to the warrant would be a major modification. The Bill would then require that this modification be made by the Secretary of State, or a senior official acting on their behalf, and notified to a judicial commissioner, even though the Secretary of State has already made the decision that it is necessary and proportionate for the communications of the individual to be intercepted, and the judicial commissioner has already approved that decision.

We recognise the importance of ensuring that the process for making modifications is rigorous. That is why we have amended the Bill following consideration in the other place such that there must be a consideration of necessity and proportionality for minor modifications, not just major modifications, as I mentioned before. We amended the Bill to ensure that the judicial commissioner is notified of a major modification to a warrant, as well as the Secretary of State, so that they have an ongoing visibility as to the extent of the activity authorised by the warrant. In conclusion, the process for making minor modifications is already sufficiently stringent, the amendment is unnecessary, and it would undermine the efficient operation of the warranty and modifications process. I invite the noble Baroness not to move Amendment 54.

Amendment 60 relates to where a major modification is being made when the protections for the communications of a parliamentarian or items subject to legal professional privilege apply. The amendment seeks to provide that, even where it is not reasonably practicable for the Secretary of State to sign the modification instrument, the instrument may be signed by a senior official only if it is being made urgently. This amendment is unnecessary and is, I believe, based on a misunderstanding of what Clause 34 provides for.

Clause 34 enables an instrument making a major modification where Sections 26 and 27 apply—in relation to parliamentarians and items subject to LPP—to be signed by a senior official where it is not reasonably practicable for the Secretary of State to sign it; for example, when the Secretary of State is out of the country, working in their constituency or otherwise unavailable. But the modification must still be personally and expressly authorised by the Secretary of State before the senior official can sign the instrument. The senior official is signing on behalf of and to acknowledge the Secretary of State’s authorisation. That is why we suggest that Amendment 60 may be unnecessary.

It may be appreciated that there will be instances when the Secretary of State is simply not physically able to sign a modification instrument. The purpose of Clauses 34(8) and (9) is to make explicit provision for this and to make it clear that a modification made in such circumstances—where the Secretary of State has approved but is not available—is not an urgent modification. That underlines the point I was seeking to make earlier, that there will always have been authorisation by the Secretary of State. Against that background, I invite the noble Baroness not to move Amendment 60.