Investigatory Powers Bill

Lord Rosser Excerpts

Tuesday 19th July 2016 Lords Chamber

[Lord Rosser (Lab)]

We welcome the spirit of the Government’s amendments, which, as the noble and learned Lord said, seek to fulfil the commitment the Government made during the passage of the Bill in the Commons to introduce a clear and appropriate threshold for accessing internet connection records. The concern was that access should not be available in connection with non-serious crime. The threshold for serious crime appears workable and appropriate.

We welcome, too, the fact that specific offences such as stalking and harassment have been addressed and can lead to access to ICRs. However, we have continuing concerns around the definition of “relevant crime”, which we feel is too broad and could still lead to the use of ICRs in connection with crimes that would not be regarded as serious. Last April, the then Home Secretary told the shadow Home Secretary that restricting ICRs to serious crime would: hamper the ability of the police to investigate online stalking and harassment; disrupt police investigations of online grooming or the sending of sexual communications to a child; reduce the ability to investigate online fraud; hinder the ability to identify and disrupt the sale and distribution of illegal material online, including illegal weapons, counterfeit medicines or illegal drugs; and prevent the police from progressing investigations where there may be a threat to life, but where it is unclear whether a crime is involved—for example, locating a missing or suicidal child—because many of these activities would not meet the serious crime threshold.

We do not disagree with the intention set out in that communication from the Home Secretary to the shadow Home Secretary, but if the Government have a list of specific offences or types of offences which they feel fall below the serious crime threshold but should not be subject to a restriction on access to ICRs, perhaps that is a matter that needs further discussion about what should be included on the list or what should be covered. We wish to see the wording in the government amendment tightened further. We would want to work with the Government on this while the Bill is progressing through its stages in this House. I hope that the Minister, on behalf of the Government, will feel able to indicate that he is willing to have further discussions on this and the wording of the amendment in the light of our concerns about the apparent broad nature of the definition of “relevant crime”.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord. I welcome the suggestion that we are at least heading in the right direction with regard to these amendments. We would of course be open to further discussions on this topic so we can address more fully what is a relevant crime in this context. I will add that one has to bear in mind that these potentially intrusive orders will be made only where it is necessary and proportionate. That is the test that exists, but I welcome the opportunity for further discussion with noble Lords.

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[Baroness Butler-Sloss (CB)]

My Lords, I have not spoken at all on this Bill so far but I should like to make a practical point following what the noble Lord, Lord Carlile, and previous speakers have said. I speak as a former family judge who over the years has been very involved in safeguarding. One of the most important things is to be sure that the police—it is really the police that we are talking about, rather than the security services—have all the tools that they can possibly have to be able to convince a jury, on a prosecution, that a really serious crime has been committed. If this is going to catch even more paedophiles I endorse it, and I hope the House will agree with me.

[Lord Rosser]

My Lords, I shall be very brief. As has been said, the provisions of this Bill have been subject to considerable scrutiny. The heart of Amendment 156A is about the balance between privacy, security and safety. Inevitably there will be disagreements, which have been highlighted in this debate, about where an appropriate and proper balance lies.

On Amendment 147A, I have virtually no knowledge about the Advocate-General’s opinion, to which reference has been made. However, if we have that opinion, we would like to hear at some stage whether the Government think that it would have implications for any of the provisions and procedures in the Bill, were that opinion subsequently adopted.

[Lord Keen of Elie]

My Lords, Amendment 156A seeks to prevent the retention of internet connection records. The Committee will not be surprised that the Government cannot support such an amendment. We have been absolutely clear about the need for internet connection records. We addressed that when publishing the operational case for these powers.

The right reverend Prelate the Bishop of Chester referred to a model of pre-legislative scrutiny. The noble Lord, Lord Carlile, referred to the most scrutinised Bill ever seen. My noble friend Lord King alluded to the three reports we have had, and the noble Lord, Lord Murphy, spoke about the Joint Committee that he had chaired which scrutinised these matters. Over and above that, we had the evidence given to the Public Bill Committee by, for example, the noble Lord, Lord Reid, and Charles Clarke. They were asked whether they thought that ICR were a key part of updating legislation for the current world, and both agreed definitively. I commend the contents of those three reports to the noble Lord, Lord Oates, and also commend to him the findings of the Joint Committee. He asked whether the UK was unique within the “Five Eyes” or indeed the world in seeking to develop these powers. It may well be that we are the forefront of developing them, and a good thing it be. I quote from the report by David Anderson QC:

“Comparing the UK’s legal regime with those of other countries is fraught with danger”.

I commend to the noble Lord, Lord Oates, what follows in that report because David Anderson develops those points and explains them. It is on the record, we have had it for a long time, we have considered it in the development of the Bill and the Joint Committee considered these matters. That is why the Bill is in its present condition.

The noble Lord, Lord Evans, observed that we have the ability to secure effective police investigations in areas where other countries have failed. I mentioned on a previous occasion the comparison between the results in the UK and Germany regarding the investigation and prosecution of cases involving paedophilia. I do not accept that, because we are ahead of others, somehow we are wrong.

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Moved by

[Lord Rosser]

156: Clause 83, page 65, line 21, leave out subsection (9) and insert—
“( ) In this Part—“relevant communications data” means—(a) communications data of the kind mentioned in the Schedule to the Data Retention (EC Directive) Regulations 2009 (SI 2009/859),(b) internet connection records, or(c) relevant internet data not falling within paragraph (a) or (b);“relevant internet data” means communications data which may be used to identify, or assist in identifying, the sender of a communication (whether or not a person).”

[Lord Rosser]

The intention behind this amendment to Clause 83 is to replicate the Data Retention and Investigatory Powers Act in its original form. In so doing, it would restrict the scope of Clause 83 and equate it to existing data retention provisions in DRIPA, with the only addition being the inclusion of internet connection records.

Under the Data Retention and Investigatory Powers Act, the term “relevant communications data”, as I understand it, covers internet access services, internet email and internet telephony. Those categories replicate the 2009 data retention regulations, which implemented the then EU data retention directive. The Counter-Terrorism and Security Act 2015 extended DRIPA to include what was called IP address resolution data.

Clause 83 currently empowers the Home Secretary to issue retention notices covering some six categories of data under the definition of “relevant communications data”. One of these categories is internet connection records. That therefore leaves five other categories, which on the face of it would appear to go wider than the existing data retention categories under the Data Retention and Investigatory Powers Act 2014 as amended by the Counter-Terrorism and Security Act 2015.

As the Bill is currently drafted, the term “relevant communications data” could be interpreted as some sort of catch-all definition of relevant communications data that would cover the collection of virtually any type of communication on a network, including communications where the sender or recipient was not a human being. If that is an accurate assessment, the definition of “relevant communications data” in Clause 83 would cover not only background interactions that smartphone apps make automatically with their supplier servers but presumably also the entire internet of things.

I therefore seek an explanation from the Government as to why the scope of “relevant communications data” in the Bill is not consistent with that in current recent legislation, the reasons and justification for the apparent broadening of the scope, and the difficulties that presumably the Government believe would be caused if the scope of Clause 83 were restricted in line with the amendment and instead equated to existing data retention provisions in DRIPA, apart from the addition of the inclusion of internet connection records. I beg to move.

[Earl Howe]

My Lords, the amendment seeks to amend the definition of “relevant communications data”—that is, the communications data that the Secretary of State will be able to require communications service providers to retain.

In looking at how the amendment is couched, I would like to bring the Committee’s attention to a statement made by David Anderson QC in his report on investigatory powers. He said that,

“any new law … must be couched in technology-neutral language”.

The Government agree. However, the amendment would go against that advice. It would seek to revert to the technical language from the data retention regulations 2009. This, in turn, as the noble Lord mentioned, was drawn from the EU data retention directive 2006, which was struck down in 2014.

I suggest to the noble Lord that it would be inappropriate to base today’s law on specific tele- communications definitions from a decade ago. For example, the amendment would ensure that we retained a reference to dial-up internet access in our legislation. That surely cannot be appropriate where broadband and mobile internet access are now the norm. The approach we have taken is to keep our definitions technologically neutral, as David Anderson recommended and as, indeed, is sensible in the drafting of any law that needs to apply across a range of technologies over time.

I hope that the noble Lord will recognise that it is not appropriate to tie our data retention regime to specific, and outdated, technological language. Those are the reasons why the Government cannot support the amendment.

[Lord Rosser]

Perhaps I may ask a question on that point. Not unfairly, the noble Earl made reference to regulations of some years ago, but presumably it is also accurate to say, and perhaps he could comment on this, that very recent legislation—namely, DRIPA 2014, as amended by the Counter-Terrorism and Security Act 2015—has also used the wording referred to in the amendment. Therefore, it also relates to legislation that is not particularly old and indeed is pretty recent. As I see it, we are making a change in wording from legislation that was passed only a year or two ago.

[Earl Howe]

The noble Lord makes what is, on the face of it, a fair point. We have language, as I have explained, that is out of date. But even where the language is not out of date in the kinds of instances that he refers to—for example, legislation refers to the “international mobile equipment identity” of devices—the rate at which telecommunications change means that that kind of language could become out of date very quickly. We try to read across the data descriptions that originated in the 2006 directive to the communications technologies of today, and do so in technology-neutral language. That is why we have departed from the approach that the noble Lord is advocating.

As the noble Lord will remember, DRIPA was emergency legislation. We simply replicated the existing language in that Bill. We now have an opportunity in the Bill before us to do rather better and try to future-proof the terms that the Bill contains.

[Lord Rosser]

I thank the Minister for that explanation. In the light of what he has said on behalf of the Government, I beg leave to withdraw the amendment.

Amendment 156 withdrawn.

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[Lord Rosser]

Since the issue of the Wilson doctrine has been raised, perhaps I could refer to the recent report from the Select Committee on the Constitution. It referred to the Wilson doctrine and made particular reference to a case decided last year, where,

“the Investigatory Powers Tribunal held that the Wilson Doctrine provided fewer safeguards for parliamentarians’ communications than had commonly been supposed”.

The Select Committee ended that section of its report by saying:

“We note that the surveillance of parliamentarians is a significant constitutional issue and would welcome clarification from the Government of its current understanding of the Wilson Doctrine”.

Do the Government intend to give an indication of their current understanding of the Wilson doctrine, in line with the views expressed in that recent report from the Select Committee on the Constitution?

[Earl Howe]

My Lords, Amendment 169AA would remove the role of the Secretary of State and law enforcement chiefs from the warrant authorisation process, in circumstances where an equipment interference warrant is sought for the purposes of acquiring the communications or private information of a Member of a relevant legislature. This proposal reflects an earlier amendment discussed by this Committee in the context of interception. As I understood her, the noble Baroness, Lady Jones, is concerned that the safeguards contained in the Bill politicise the process of authorising a warrant. I do not share that perspective at all.

As my noble and learned friend Lord Keen said when we first discussed this matter, this amendment would in fact reduce the safeguards for parliamentarians. In line with the commitment given by the previous Prime Minister last November, the Bill provides a triple lock where warrants concern a parliamentarian’s communications or private information: they must be issued by the Secretary of State; approved by the Prime Minister; and authorised by a judicial commissioner. The Bill goes even further in the context of equipment interference warrants issued to law enforcement agencies, which are issued by a law enforcement chief and must be approved by the Secretary of State, the Prime Minister and an independent judicial commissioner.

I will not rehearse the arguments for the double lock at this point, but it is important to remember, as the noble Lord, Lord Murphy, reminded us, that it was endorsed by the Joint Committee of Parliament that scrutinised the draft Bill and, following amendments made in the other place, enjoyed cross-party support. The additional safeguards provided for parliamentarians add an extra layer of checks to the process. I do not share the perception of the noble Baroness, Lady Jones, that the process introduces the risk of political bias. In fact, I find it difficult to see what possible benefit would accrue from removing one of the checks that we now propose—that regarding the Secretary of State or law enforcement chief. In view of that, I respectfully invite the noble Baroness to withdraw her amendment.

I will move on briefly to the amendment tabled by the Government. Amendment 173 is—this answers the question from the noble Baroness, Lady Hamwee—a small, technical amendment that simply corrects the omission of a definition from Clause 114. The amendment adds the appropriate definition of a “designated senior official” to the clause, informing the reader of the persons to whom the provision applies. We do not think that there is any need to revisit the relative definitions in other parts of the Bill, and the amendment does not change how the equipment interference regime operates in any way.

The noble Lord, Lord Rosser, asked about the Government’s view of the Wilson doctrine. As he will be aware, in its judgment of 14 October the IPT comprehensively rejected the claim brought by a number of parliamentarians that their communications were improperly intercepted and found that all activity was within the law. The IPT also found that MPs’ communications with their constituents and others are protected by RIPA, the statutory legal regime, and that the regime governing the interception of MPs’ communications is compliant with the European Convention on Human Rights.

In February 2015, the Government published an updated draft code of practice on the interception of communications, which explicitly recognised the importance of communications between constituents and their elected representatives. In consequence, the Bill now provides for this in statute by setting out a role for the Prime Minister in authorising warrants which target a parliamentarian. I hope that that is helpful.