Investigatory Powers Bill

Baroness May of Maidenhead Excerpts

Tuesday 1st March 2016 Written Statements

[The Secretary of State for the Home Department (Mrs Theresa May)]

I have today introduced the Investigatory Powers Bill. This important piece of legislation will provide a new framework to govern the use and oversight of investigatory powers by law enforcement and the security and intelligence agencies. The enhanced privacy safeguards, which are at the heart of the Bill, protect not only sensitive professions but the public at large.

The Investigatory Powers Bill will transform the law relating to the use and oversight of these powers. It will strengthen safeguards and introduce world-leading oversight arrangements. The Bill does three things:

First, it brings together all of the powers already available to law enforcement and the security and intelligence agencies to obtain communications and data about communications. It will make these powers—and the safeguards that apply to them—clear and understandable.

Secondly, the Bill radically overhauls the way these powers are authorised and overseen. It introduces a “double-lock” for interception warrants, so that, following Secretary of State authorisation, these—and other warrants—cannot come into force until they have been approved by a judge. And it creates a powerful new investigatory powers commissioner (IPC) to oversee how these powers are used.

Thirdly, it ensures powers are fit for the digital age. The Bill makes provision for the retention of internet connection records (ICRs) in order for law enforcement to identify the communications service to which a device has connected. This will restore capabilities that have been lost as a result of changes in the way people communicate.

Last year, three comprehensive reviews were conducted into the use of investigatory powers. Those reviews, carried out by David Anderson QC, the independent reviewer of terrorism legislation, the Intelligence and Security Committee of Parliament (ISC), and a panel convened by the Royal United Services Institute (RUSI), agreed that the use of these powers will remain vital to the work of law enforcement and the security and intelligence agencies in the future. But they also agreed that the current legislation needed reforming. Collectively they proposed important changes to the way these powers are overseen and recommended the introduction of consistent safeguards and greater openness. These proposals provided the basis for the legislation being brought forward today.

In November 2015 the Government published a draft Bill for pre-legislative scrutiny. The provisions in the draft Bill were considered by the House of Commons Science and Technology Committee, the Intelligence and Security Committee of Parliament and by a Joint Committee of both Houses of Parliament convened to scrutinise the draft Bill.

The Government are grateful to the three Committees for their thorough and comprehensive scrutiny of this Bill. Their efforts have assisted us in enhancing safeguards and refining technical aspects. The revised Bill we are introducing today is both clearer and stronger in protecting privacy.

Between them, those Committees received a significant body of written evidence and heard from Government, industry, civil liberties groups and many others. The revised Bill, along with the further explanatory material that we are publishing, reflects the majority of the recommendations made by the three Committees. I am publishing a Command Paper alongside this Bill which sets out the Government’s response to the three Committees and provides a guide to the Bill, setting out clearly how the draft Bill responds to their recommendations.

We have taken significant steps to address the common themes across the three reports. In particular:

We have responded to the Committees’ call for greater clarity by producing a much clearer Bill. We have refined technical definitions and are publishing additional material alongside the Bill to explain how the powers in the Bill will be used and why they are needed.

The privacy safeguards are stronger and clearer. The Bill incorporates additional protections for journalists, removing a key exemption for the security and intelligence agencies when seeking to identify journalists’ sources. And it incorporates statutory protections for lawyers.

In response to recommendations from the Joint Committee and the Science and Technology Committee, we will continue to work closely with industry to develop implementation plans for retaining internet connection records.

In response to the Committees’ detailed recommendations, the Bill incorporates significant changes, including:

Strengthening the office and powers of the investigatory powers commissioner, giving the Lord Chief Justice a role in his or her appointment, making it harder to remove him or her from office, providing statutory powers for direct access to the agencies’ IT systems, and allowing for the commissioner to inform people who have suffered as a result of the inappropriate use of powers.

Introducing new safeguards for interception warrants, reducing the period of time within which a judicial commissioner must approve urgent interception—and equipment interference—warrants and putting in place new statutory safeguards to prevent agencies asking overseas partners to undertake interception in the absence of a warrant.

Clarifying the provisions in the Bill relating to the obligations that may be placed on communication service providers, including amendments to the Bill to put beyond doubt that companies can only be asked to remove encryption that they themselves have applied—or has been applied on their behalf by a third party—and that they will not be asked to remove encryption where it is not practicable for them to do so. The accompanying codes of practice also make clear that a warrant can only be served on a person who is capable of providing the assistance required by the warrant, and that the duty to comply with the warrant can only be enforced against a person who is capable of complying with it.

Where we have not been able to accept the Committees’ recommendations, our response to the Committees explains the good reasons for not accepting them. In particular:

We will continue to use “economic well-being”, where it is linked to national security, as a purpose for which some of these powers can be used. That is in line with the statutory purposes of the intelligence agencies and relevant European directives.

We also preserve bulk equipment interference warrants. This is a key operational requirement for GCHQ. We have published a public case for the use of bulk powers which sets out why this power remains necessary.

To assist Parliament in scrutinising the Bill, and at the recommendation of the Joint Committee, the Government are publishing today drafts of six statutory codes of practice that will be made under the Bill. These address many of the Committees’ recommendations by providing details of how the powers and obligations will work in practice. The codes will be approved by Parliament and will have statutory force.

The Government have also heeded comments that we must go further in making the case for the bulk powers provided for in the Bill. I firmly believe bulk powers are a vital part of this Bill. As those who wish to do us harm grow ever more sophisticated in circumventing the reach of law enforcement and the security and intelligence agencies, we must provide them with the powers they need to keep up and keep us safe. The bulk powers in this Bill provide essential capabilities needed to detect threats to the UK and its interests. But it is right that Parliament has a chance to debate these powers and that the public understands what the law permits with regards to their personal data.

In response to the recommendation of the Joint Committee, the Government are publishing alongside the Bill an operational case for bulk powers. This sets out in more detail than ever before why the agencies need these powers, examples of how they are used, and the safeguards that will govern their use under the Bill. We have also updated the published case for internet connection records to reflect that we are accepting the Joint Committee’s recommendation that, where necessary and proportionate, the purposes for which law enforcement may seek to access ICR should be expanded to include information about websites accessed beyond those related to communications services and illegal material.

The Joint Committee recommended that the Bill should provide that a specially constituted joint committee of the two Houses should conduct a post-legislative review of the legislation after five years’ operation. It is not possible to bind Parliament in statute to take such action, so instead the revised Bill addresses the recommendation by requiring the Secretary of State to consider any report which may have been made by a Joint Select Committee. However, it is right that such scrutiny should take place and the Government are committed to taking all steps within their power to ensure that it does.

The Government are not seeking sweeping new powers. Rather the Bill ensures that the security and intelligence agencies and law enforcement continue to have the powers they need to keep us safe against a backdrop of an increasingly complex, serious and unpredictable threat. The Bill provides the public and Parliament with greater confidence that there are robust measures in place to ensure that the powers are subject to world-leading safeguards.

The new legislation needs to be in force by 31 December 2016. During the parliamentary passage of the Data Retention and Investigatory Powers Act 2014, some suggested that the sunset clause should be brought closer and therefore that new legislation should gain Royal Assent sooner. This would have resulted in substantially less time for public debate and scrutiny in Parliament.

I explained then that it was vital that sufficient time was given to examine these important powers, and Parliament agreed that approach. I subsequently set out a timetable for new legislation on the publication of David Anderson’s report, committing to publish draft legislation in the autumn and to bring forward a final Bill in the spring. By introducing the Bill now, we are ensuring that this important piece of legislation will be subject to full and thorough scrutiny by both Houses of Parliament, following the normal parliamentary timetable.

[HCWS568]