Investigatory Powers Bill

Baroness Hamwee Excerpts

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

[Lord Janvrin (CB)]

My Lords, I rise briefly to speak to Amendment 1, tabled in my name. I declare an interest as a member of the Intelligence and Security Committee. When the ISC reported on the draft Bill, we recommended that privacy protection should form the backbone of the legislation, around which the exceptional, intrusive powers would then be built. This recommendation was to underline at the very outset of the Bill that a delicate balance must be struck between an individual’s right to privacy and the exceptional powers needed by the intelligence agencies to ensure our safety and security.

The Bill has seen substantial changes in the other place and at earlier stages in this House, and those changes have introduced significant improvements in the protection afforded to privacy. Very important in this process was the introduction by the Government at the overview of the Bill of the clause on general duties in relation to privacy. This amendment seeks simply to reinforce the Government’s approach. The Intelligence and Security Committee still feels that there is merit in placing a simple statement right at the forefront of the legislation to provide additional clarity that there should be no doubt that privacy protection remains a fundamental priority. I hope that, on this occasion, the Minister may feel able to support this very brief amendment, and I look forward to hearing his response. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I hesitated because I thought the Minister might wish to introduce the government amendments before I spoke to mine, as I think one of mine may be an amendment to one of his. We on these Benches support the noble Lord, Lord Janvrin, on Amendment 1. It would provide a very clear statement of purpose for the Bill, and one which would be very useful. The Lord Advocate said in Committee that an amendment similar to this would not add value. On the contrary, it would add value by giving that statement of purpose. The first clause is badged as an overview of the Act. In fact, what it does is to list the different parts of the Act and give an overview of each of them. The clause does not give an overview of the Act; the noble Lord’s amendment would do so, and the clause would live up to its name.

We have Amendments 8, 9 and 12 in this group. Amendment 8 would provide that the powers should not be used if the objectives could be achieved by other, less intrusive means. This, too, was an amendment that we debated in Committee. The Bill provides that regard must be had to the possibility of achievement by other, less intrusive means. My noble friend Lord Lester of Herne Hill apologises that he cannot be here today—although I am not sure whether one should apologise for an illness. He has kept me up to date with his position. He talked about the “rubbery” quality of the term “have regard to”. This amendment would make the obligation an absolute one—but not an unreasonable one, because the term “reasonably”, as in,

“could reasonably be achieved by other less intrusive means”,

is included. My noble friend Lord Lester referred to this as,

“classic principle of proportionality language”.—[Official Report, 11/7/16; col. 53.]

I was pleased that, on that occasion, we had the support of my noble friend Lord Carlile of Berriew, who said that the wording,

“would be more useful and more certain”,

than that with which he was comparing it, and that, above all, it would,

“avoid unnecessary disputes about the meaning of and compliance with Article 8”—

that is, Article 8 of the convention—

“in the courts”.—[Official Report, 11/7/16; col. 54.]

My noble friend Lord Lester had painted a rather gloomy picture of the problems that could arise if the legislation was not absolutely clear.

The noble Earl agreed to consider the proposition. He referred to the use of the wording in codes of practice. My noble friend Lord Carlile, who was more polite than I was about problems with codes of practice, said that he supported the amendment because it would be preferable to have the words in the Bill,

“rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty”.—[Official Report, 11/7/16; col. 56.]

Both my noble friends have very considerable experience of arguing the case—no doubt both ways—in the courts. I am not sure whether the Government’s Amendments 10 and 11 are intended to address the point that we were debating. I am sure I will be told.

Our other amendment, which I will have to speak to now because we are on Report, is an amendment to government Amendment 11. I welcome government Amendments 10 and 11, but I am a bit uneasy about intrusiveness being gauged against the sensitivity of the information. My point is a wider one: everyone in every case should expect the least intrusive means to be tried first. Amendment 12 to government Amendment 11 is tabled to understand whether everything in Amendment 11 falls within Amendment 10. We have wording in Amendment 10 about the “particular sensitivity” of information. Amendment 11 gives examples of “sensitive” information. Are there, therefore, two hurdles to be crossed: “sensitive” and “particular sensitivity”? Amendment 12 seeks to understand how the two amendments relate to one another.

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

My Lords, the noble Lord, Lord Janvrin, has again spoken persuasively on the importance of making clear that privacy is at the heart of the Bill. The amendment tabled in his name, on behalf of the Intelligence and Security Committee of Parliament, serves to reinforce that point and provide greater clarity. He will be pleased to know that, on that basis, I am happy to support it.

Included in this group are a number of government amendments. Clause 2 brings together in one place at the front of the Bill the considerations a public authority must have regard to, and the duties that apply, when exercising a power provided by this Bill.

Amendments 2 through to 7 are technical amendments to ensure that the obligations under Clause 2 continue to “bite” in relation to the roles of judicial commissioners under the Bill as amended in this House. Some of these could be seen as consequential to amendments that we shall discuss in the coming days. If the House will allow, I do not believe that it would be helpful to expand on them here, save to say that the Government propose to introduce greater protections in respect of the retention of communications data and the treatment of sensitive professions under the Bill. Where those protections create a role for judicial commissioners, the amendments will again ensure that the duties imposed by Clause 2 continue to apply in respect of the commissioners’ expanded remit.

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Moved by

[Baroness Hamwee]

14: Schedule 1, page 201, line 33, after “hearing” insert “, at which he or she may be legally represented,”

[Baroness Hamwee]

My Lords, this will be, I hope, short and uncontentious. The amendment was suggested to us by the Law Society of Scotland. It seeks clarification and, of course, an amendment if one is required to achieve the point.

Clause 7 introduces Schedule 1 to the Bill and provides for “Monetary penalties for certain unlawful interceptions”. Under paragraph 4(4) of Schedule 1, a person who is the subject of a penalty notice may,

“request an oral hearing before the Commissioner in order to make representations”.

Our amendment would provide that such a person may have legal representation to assist with those representations.

The Law Society of Scotland says that,

“given the nature of the Bill and from an equality of arms perspective, legal representation should be available as a right”.

I would say that legal representation should generally be available, whatever the Bill, whether it is 10 pages or 250-plus pages and complicated. It is an important point to clarify. There is no provision which says there may not be legal representation, so it may be that this can be dealt with outside the Bill; certainly, there should be no block on it. I hope that the Minister will be sympathetic to the point. I beg to move.

[Earl Howe]

My Lords, I trust I can deal with this amendment with a degree of brevity equal to that employed by the noble Baroness. I reassure her that the amendment is not necessary. It is already the case that a person on whom a monetary penalty notice has been served who requests an oral hearing before the commissioner can be legally represented at the hearing. There is nothing in the Bill that would preclude such representation, and of course it will be up to the person on whom the notice is served to choose whether or not they wish to be so represented. Therefore, what is intended by the amendment is already provided for. Accordingly, I hope the noble Baroness will feel comfortable in withdrawing the amendment.

[Baroness Hamwee]

I am grateful for that assurance. The point is that it is not provided against, rather than that it is provided for. I dare say somebody will be writing rules about these hearings at some point, so I am glad to have that assurance on the record. I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

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Moved by

[Baroness Hamwee]

19: After Clause 10, insert the following new Clause—
“General public reporting
(1) No offence shall be committed by a person who is subject to a warrant or notice under this Act disclosing by way of publication of a report—(a) the number of warrants received;(b) the number of accounts affected; and(c) the number of warrants complied with,during the period of 180 days prior to the date of the report.(2) Nothing in this section shall restrict the publication of information referred to in this section at a different time, or in a different form or manner agreed by the Secretary of State.”

[Baroness Hamwee]

My Lords, this might be a mouse after the last amendment but it is not unimportant. It is about transparency—and perhaps more than transparency. It is about positively putting information into the public domain and not simply providing information which can be looked through. It is, if you like, a companion to the very welcome privacy clauses in the Bill. It is intended to help the citizen understand what is going on and to enable operators to put into the public domain the warrants and so on with which they have to deal. It provides that they will not commit an offence by disclosing not details but the number of warrants, the number of accounts and the number of warrants complied with, going back only for a limited period of six months. The second limb of the amendment —that they can do more, or more can be done by whoever, if the Secretary of State agrees it—should go almost without saying.

I am told, and would welcome confirmation if the Minister can give it, that the Government are considering regulations to introduce a clear framework for transparency and that provisions such as this might fall within those. To that extent, my amendment is a probing amendment.

User transparency around engagement with law enforcement and government agencies is a key component of accountability to users. It is a prerequisite too, I would say, of redress. Given that the Government are committed to greater transparency than we have had hitherto through this Bill, and to this being a world-leading piece of legislation, I hope that they will be sympathetic to the provisions proposed. The amendment would permit providers to publish statistical data and would complement the Investigatory Powers Commissioner’s annual report, looking at the issues through a different lens and from another perspective. I beg to move.

[Lord Keen of Elie]

My Lords, it is the Government’s view that a new public reporting clause, as proposed by this amendment, is unnecessary. I will seek to explain why.

Clauses 55 and 125 already provide for the Secretary of State to make regulations that will permit operators to report information in relation to the number of interception and equipment interference warrants they have given effect to. Furthermore, the Government have proposed amendments to these clauses to give more flexibility to permit operators to publish greater statistical information about the warrants they have received. In response to a point made by the noble Baroness, Lady Hamwee, I can tell the House that it is the Government’s intention that the regulations will permit companies to publish details relating to the number of warrants they have given effect to and the number of customer accounts to which these warrants refer.

However, as was previously discussed in Committee, we need to be very careful about any exemptions to prohibitions on revealing sensitive information and the extent to which they might reveal the capabilities of the agencies. It is already the case that terrorists and criminals change their behaviour and the means they use to communicate to evade detection, and we must not give them further information that would help them to do so.

The Secretary of State must have the ability to protect the technical capabilities deployed by law enforcement and the security and intelligence agencies by setting out the way information relating to warrants may be reported—for example, the time period between being served with a warrant and publication of that information, or the bandings to be used for reporting on the numbers of warrants received. It is our view that the level of detail required is appropriate for such conditions to be provided for in regulations, not in the Bill.

The Government will of course continue to work closely with telecommunications operators on their transparency reporting. We have already discussed the proposed content of the draft regulations with them. Indeed, the government amendments to Clauses 55 and 125 reflect our efforts to address issues raised by operators in response to this consultation. Of course, also, the regulations issued under Clauses 55 and 125 will in due course be subject to parliamentary scrutiny.

It is therefore our view that the Bill and the Government amendments already provide for what these amendments seek, in in a way that allows companies to be transparent and the Government to protect sensitive capabilities. Accordingly, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, I thank the noble and learned Lord for that response. What we are really being told is that the fleshing out of transparency provisions that I seek is in train. I of course understand points such as the need to consider exceptions.

I am prompted by this to mention a question that I should perhaps have asked the Government a little while ago, but I think all noble Lords will be interested. I am not expecting the noble and learned Lord to respond to this instantly, but we would all be interested to know the timetable for introducing regulations. We know there is a deadline of the end of this year because of DRIPA coming to the end of its natural life, but I assume the Bill cannot operate without a lot of secondary legislation. I wonder whether there could at some point be an indication of not only how the Government propose to deal with regulations but how the House, which is generally very supportive of the thrust of the legislation, despite one or two bits and pieces, can be helpful without losing its proper role of scrutinising regulations.

I should not perhaps take time on Report to be as pompous as that sounds. It is intended to be both an inquiry and an expression of concern about a matter that is for Parliament, not just the Government. Having said that, and welcoming the information about the work going on on this subject, I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

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The amendments that I have discussed seek to clarify a number of points on the use of the powers already contained in the Bill and correct a number of minor errors. I hope that what I have said is helpful, and I beg to move Amendment 21.

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I have three amendments in this group—but, first, I thank the noble Earl for the amendment reducing the five-day period in the case of urgency regarding modifications so that it is in line with the urgent issue of warrants. He referred to agility; three days preserves agility as it requires a judicial commissioner to be slightly more agile. More importantly, it is consistent and sensible. We were puzzled during Committee as to why the very similar arrangements about urgency were not consistent with regard to the time period, so we are glad to have taken that step forward.

Two of our amendments, Amendments 40 and 41, also refer to modifications. Clause 34 refers to modifications using provisions about,

“adding the name or description of a person, organisation or set of premises”.

We would add “or varying” to “adding” because it seems that a variation may be as significant as—and in effect amount to—an addition. I acknowledge that under Clause 32, which defines major modifications, variations of “name or description” are included. But Clause 34, to which our amendments would apply, allows modifications which are “necessary” and “proportionate”. Do we actually have consistency here? I am worried that by not allowing for variations within the regime of major modifications, we might let some additions in through the back door.

Amendment 66 would amend Clause 96, which is about the subject matter of equipment interference warrants. There is no restriction on the use of targeted thematic equipment interference warrants, unlike bulk EI warrants, which can be used to obtain only overseas communications data or information and are available only to the security services. Under the clause, there is no limit to the size of,

“a group of persons who share a common purpose”—

although I accept that “common purpose” contains a natural limit—nor to what is meant by,

“more than one person or organisation”.

That has dictated where we have tabled this amendment, which suggests a limit of 50 persons for a single investigation. It is clearly an arbitrary figure but it is there to try to tease out, a little more than perhaps we were able to in Committee, how this will work and how it could not grow in the application to such an extent as to defeat what we see as the purpose of those provisions. So we are not of course wedded to 50 but we are wedded to finding out a little more about the operation of this.

[Earl Howe]

My Lords, I am most grateful to the noble Baroness for speaking to her amendments so clearly, as she always does. Perhaps I may first address Amendments 40 and 41, which relate to Clause 34. I do not believe that these amendments are in fact necessary. I agree that in circumstances where an agency seeks to add something to a warrant, that should be possible only where it is both necessary and proportionate. That is what the Bill provides, and that necessity and proportionality test applies whether a name or description is being added, or where a factor is being added.

However, I do not agree that a necessity and proportionality test is relevant where a name, description or factor is simply being varied. In such a case, the conduct authorised by the Secretary of State and approved by the judicial commissioner is not changing in substance. An example might be where an individual is identified initially by a nickname but their true identity subsequently becomes known. I will give another example, which I hope will reassure the noble Baroness. During Committee noble Lords expressed concern about warrants against premises. If an agency applies for a warrant against a premises at, let us imagine, 25 Acacia Avenue and it turns out that it actually intended to target 125 Acacia Avenue, in that sort of case the original warrant should be cancelled and the error reported to the Investigatory Powers Commissioner —and an entirely new warrant should be sought. So there are two types of variation, if I may put it that way. One, I suggest, should not require the process that the noble Baroness has suggested; the other also should not require the process because it should be subject to an entirely fresh warrant. I hope that that provides her with the necessary reassurance.

Turning now to Amendment 66, as the noble Baroness explained, the amendment seeks to limit the number of persons that a targeted examination warrant issued under Part 5 may relate to. The amendment would clearly mean that any individual targeted examination warrant that relates to multiple persons for the purposes of a single investigation or operation under Clause 96(2)(c) could not relate to more than 50 persons. I believe that inserting such an arbitrary limit would be a mistake—I know the noble Baroness realises that it is an arbitrary figure—and that it would not add to the strong safeguards already provided for in the Bill.

The decision on whether a warrant is necessary and proportionate is rightly one for the issuing authority and the judicial commissioner. There may be circumstances in which the case for examining the material of more than 50 persons is entirely proportionate to what is sought to be gained from that task. For example, if the security and intelligence agencies are investigating UK-based users of websites hosting illegal child pornography, it would be detrimental and dangerous to limit the number of people they could investigate to a particular figure. This could in some cases result in material relating to dangerous subjects of interest escaping entirely appropriate examination simply because they were past the relevant number that would be set out in statute if this amendment or something like it were accepted.

Mandating that a targeted examination warrant must not relate to more than 50 people would mean either that vital operations could not proceed or that the intelligence agencies would on some occasions need to submit multiple applications for warrants relating to a single investigation or operation. That would needlessly increase the bureaucratic burden placed upon the agencies and the issuing authority while also hampering the ability of the issuing authority and the judicial commissioner to consider the operation in full. Such a restriction would add no additional rigour to the already robust double-lock process.

Introducing an arbitrary restriction does nothing to ensure that the principles of necessity and proportionality are upheld, but the role of judicial commissioners, already provided for by the Bill, does. That is why the Bill requires both the issuing authority and the judicial commissioner to consider, on a case-by-case basis, whether the breadth of a warrant is appropriate without the imposition of indiscriminate limits. In summary, the amendment has the potential to be damaging, needlessly bureaucratic or both, and I invite the noble Baroness not to press it.

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In outlining this package of measures, I trust I have demonstrated to noble Lords that the Government recognise the importance of ensuring the Bill provides the proper protections for legally privileged material. I trust I have made it clear that the Government heard the strength of feeling on this issue when we discussed it in Committee. I hope noble Lords will agree that the revised protections in the Bill appropriately reflect the sensitivity of legally privileged material, while ensuring that the agencies we rely on to keep us safe have the tools they need to do their job.

[Baroness Hamwee]

My Lords, I was wondering whether the noble and learned Lord, Lord Mackay of Clashfern, wanted to speak to his amendment before I came in with my rather more disparate ones. First, I thank the Government very much for the significant amendments which the noble and learned Lord has just introduced. The House will understand that, being members of the legal profession, the noble Lord, Lord Pannick, and my noble friend Lord Lester of Herne Hill were not leaving it there but were going to try to pin everything down. I have already given the apologies of my noble friend Lord Lester, and I need to give those of the noble Lord, Lord Pannick, because of the religious holiday starting just about now. I also thank Tom Hickman of counsel, who drafted the amendments to which I will speak, instructed by the Law Society of England and Wales. As all the dramatis personae seem to come from the same chambers, I did suggest they might have got together over a cup of tea, but that did not happen.

Amendment 27 is an amendment to the amendment expanding the meaning of “exceptional and compelling circumstances”. The government amendment provides that the public interest in obtaining the information must outweigh the public interest in the confidentiality of it. We are of course talking about items subject to legal privilege, and the amendment would provide that it should “clearly” outweigh that second interest. I do not want to get into an argument here, but I suppose a current example would be whether 52 to 48 is a clear difference in the balance of concerns. Where a balance is being struck, it might well be one which is teetering, or where one consideration outweighs the other but barely, so is it not right to say that one public interest in this situation should “clearly” outweigh the other for the provisions to operate?

The next amendments also relate to the use of the intercepted material where the circumstances override privilege. The Bill specifies only such circumstances where a warrant is sought with the express purpose of obtaining legally privileged material or where this is the likely result of the interception. It seems to the Law Society that the principle should apply with equal force when privileged material is obtained as an unintended by-product of interception—for example, in circumstances where a warrant is sought to intercept the telephone of a suspected serious criminal who is not known to have contact with a lawyer but who, after the warrant is obtained, instructs a lawyer and speaks with him or her on his telephone.

The Bill as drafted provides that whenever material is retained, the Investigatory Powers Commissioner must be notified, but the Bill should make it clear that the commissioner should allow use of the material only in exceptional and compelling circumstances, and have express power to direct that the material not be further used, or that it should be destroyed. The amendments to the new clause after Clause 52 and those to the amendments to Clause 144 would address this.

Finally, there are proposals for protection in the Bill for privileged material in the context of communications data. The Government have accepted the principle of such protection but have proposed that it be addressed by the code. The amendment in question seeks to put the provisions into the Bill and not leave the matter to a code, which of course has a different status. It may be a more flexible document, but this issue is so important that a clause closely analogous to that requiring independent authorisation for information which could disclose a journalist’s source, which is in the Bill, should be provided to protect confidential access to legal advice.

I know that the noble and learned Lord has spent a good deal of time considering the detail of these amendments as well as the structure the Government now have, and I am grateful to him for the meeting he held with various legal luminaries and me yesterday. I hope he can accept some or all of these amendments, or help the House with a way forward in capturing in the Bill the points made by them, if not precisely in this form.

Investigatory Powers Bill

Baroness Hamwee Excerpts

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

[Lord Beith (LD)]

My Lords, I applaud any attempt to make the definitions precise but there comes a point when there is a negative consequence. I am slightly worried that the wording of the amendment—certainly as drafted—could inhibit the activities of law enforcement in establishing a pattern in the development of criminal behaviour and activity, particularly in the area of organised crime, if it were to be interpreted as strictly as its wording invites. Although the intention of the amendment is good, I am not yet persuaded that it can safely be included without an undesirable inhibition of a particularly important area of activity at the moment—namely, establishing whether groups with well-suspected criminal intent might be planning something worse.

[Baroness Hamwee (LD)]

My Lords, the noble Lord, Lord Rosser, has set perhaps the hardest task for the Minister today in asking him to comment on what was perhaps not a coded speech but simply one inviting speculation.

Turning to the amendment itself, as on the first day of Report we are sympathetic to where the noble Baroness is coming from. Indeed, I think we had an amendment on “reasonable suspicion” at an earlier stage. However, perhaps again I should phrase what I have to say as a request for confirmation, as my noble friend Lord Paddick did last week. Reasonable suspicion is encompassed by the necessity and proportionality test. The way the noble Baroness has expressed it is that there is a moderate-sized hurdle to be got over and then a higher hurdle to be surmounted, by having “reasonable suspicion” and then the necessity and proportionality test. To keep up the athletic metaphor, you will not get over the higher hurdle even if you get over the lower one, so it seems to us that you might as well just have the higher hurdle. Perhaps we can be given some more assurances about how the different criteria will bite.

[Earl Howe]

My Lords, I listened carefully to the noble Baroness, Lady Jones of Moulsecoomb, and I am grateful for the case she has put. However, I cannot agree with it, and I will explain why that is.

As the noble Baroness explained, this amendment seeks to provide that certain communications data authorisations can be approved only where there is a reasonable suspicion that a serious criminal offence has been, or is likely to be, committed. In short, the amendment would undermine the ability of law enforcement and other public authorities to catch criminals and to keep the public safe. I will now set out why I believe that is so.

I shall start with the requirement for reasonable suspicion. As we discussed and agreed in this House last week, the necessity and proportionality test is established and well understood. It is difficult, therefore, to see what benefit would be derived from inserting a different test. Indeed, in order to approve an authorisation for communications data for the purpose of preventing or detecting crime, a sufficiently compelling case will always be required—a speculative authorisation would never be approved. Therefore, I suggest that the amendment responds to a concern that is fundamentally misplaced.

Turning to the serious crime threshold that this amendment would insert, assuming that the noble Baroness intends the threshold to be equal to that currently used to authorise the interception of communications, I believe once again that the amendment is inappropriate and damaging. Taking effective action against serious criminals often requires the investigation of, if I may use the phrase, lower-level individuals for activities that are not considered serious crimes in order to build a case against higher-ranked criminals. It may also include the investigation of minor offences where stopping an offender at this point may prevent an escalation of their criminal activities, such as in stalking and grooming cases.

It might be helpful if I expand on that. Placing this additional restriction on the acquisition of communications data would disrupt police investigations of online grooming and linked crimes, such as the sending of sexual communications to a child. This is because where such activity does not meet the high threshold proposed, which will often be the case if the child is over the age of 13, it may be impossible to identify perpetrators who may go on to be involved in child sexual exploitation. As such activities increasingly take place online, law enforcement agencies will rely heavily on communications data and the new power in relation to internet connection records in order to investigate this.

The amendment would also reduce the ability to investigate online fraud, which affects everyday internet users who shop or bank online, but which could, depending on the value of the fraud, fall below the serious crime threshold proposed here. Equally, the Department for Work and Pensions, for instance, investigates false tax credit claims which can result in the collective overpayment of millions of pounds of taxpayers’ money, but these false claims may not individually reach the threshold of serious crime. Communications data are currently used to investigate such activity.

I also believe that these amendments are unnecessary given the strict safeguards that already apply to the use of communications data. Data can be accessed only on a case-by-case basis and only where judged necessary and proportionate by a senior officer of a rank specified by Parliament and who is independent of the investigation. Strong judicial oversight will also be provided by the Investigatory Powers Commissioner.

I was grateful to the noble Lord, Lord Rosser, for qualifying his party’s position on this part of the Bill. We maintain that our existing regime and the proposals in the Investigatory Powers Bill are compliant with EU law, but whatever the final judgment, given the importance of communications data to preventing and detecting crime and safeguarding national security, we will ensure that plans are in place so that the police and others can continue to acquire such data in a way that is consistent with our obligation. I hope that that is helpful.

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Moved by

[Baroness Hamwee]

100A: Clause 58, page 48, line 13, at end insert—
“( ) Communications data obtained for any of the purposes listed in subsection (1)(b)(ii) may not be used or disclosed other than for those purposes and must be destroyed as soon as possible after the data has been used for the purposes for which the data has been obtained.”

[Baroness Hamwee]

My Lords, I move this amendment in my name and that of my noble friend Lord Paddick. The issue of destruction of material was raised by the Government last week in respect of legal professional privilege. In that case, the Minister proposed and the House agreed that when an item subject to legal privilege is intercepted and obtained, the Investigatory Powers Commissioner can impose conditions as to its disclosure or direct destruction. We proposed a further safeguard about destruction, which the Minister is considering—he said that he would like to return to it at Third Reading—but which he thought was essentially a good idea, and we recognise the Government’s approach as something that we want to build on.

Amendment 100A is in the same area. There are destruction requirements elsewhere in the Bill. Clause 58(1) deals with what is necessary and proportionate for a targeted authorisation for obtaining data. It is necessary in one of the cases set out in subsection (1)(b),

“for the purposes of testing, maintaining or developing equipment systems or other capabilities relating to the availability or obtaining of communications data”.

The amendment would provide that data obtained for any of these purposes may be used only for such purposes. The Minister may say that that must be so and critically that,

“it must be destroyed as soon as possible after the … purposes”,

have been fulfilled. We believe that it must be the case that data obtained for testing systems should be subject to such a safeguard because, by definition, they are not required for a specific investigation and are therefore not necessary in the interests of national security or any of the other purposes set out in Clause 58(7). If data are required for a specific investigation, then those other provisions will kick in.

The destruction requirement that we are seeking is confined to the very narrow situation of the testing of systems. I hope that the Minister will agree to this, but if not that he will at least explain how data obtained in that situation are to be destroyed so that they do not hang around, as it were—which is probably not a technical phrase. I beg to move.

[Earl Howe]

My Lords, I hope that I can reassure the noble Baroness. Amendment 100A is unnecessary since the use, retention and destruction of all personal data held by public authorities, including communications data, are already regulated by the Data Protection Act 1998. That means that, once communications data have been obtained, there must be a lawful purpose for their use and ongoing retention, and they must be destroyed when they are no longer held for a lawful purpose. I would draw the attention of noble Lords to Chapter 11 of the Communications Data DRAFT Code of Practice, which sets out detailed requirements, consistent with the Data Protection Act, on public authorities about the use, disclosure, protection and destruction of the communications data they hold.

In addition, the amendment would unnecessarily, and in some cases very damagingly, require a public authority to destroy communications data it had obtained once they had been used for the purpose for which they were acquired, but other legitimate and important purposes for holding data may still exist. For example, a public authority is obliged by law to retain material it holds that has been used in evidence to support a conviction in case of appeal or to overturn a potential miscarriage of justice. It is also obliged to retain any material that is potentially exculpatory, even if it considers that it no longer requires the data for the original purpose for which it was acquired. This amendment would cut across those important tenets of our criminal justice system and I cannot imagine that that is what the noble Baroness wants to see.

I hope that, in combination, what I have been able to explain will reassure her sufficiently to enable her to withdraw the amendment.

[Baroness Hamwee]

I should obviously have included something like the words “except as otherwise required by law”. I am grateful for that explanation and I am sympathetic to the Government trying to get everything into the Bill, but here we find yet another example of another piece of legislation that we need to look at. However, it is helpful to have the explanation, and I beg leave to withdraw the amendment.

Amendment 100A withdrawn.

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[Lord Rosser]

My Lords, when the Bill was going through the House of Commons, the Government made a commitment 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 that the Government came up with in Committee appeared workable and appropriate.

But last April, the then Home Secretary told the then shadow Home Secretary that restricting internet connection records 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 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.

While we welcome the fact that specific offences such as stalking and harassment have been addressed and can lead to access to internet connection records, we have continuing concerns around the definition of “other relevant crime”, which is too broad and could still lead to the use of internet connection records in relation to crimes that would not be regarded as serious.

Currently the Bill defines “other relevant crime”, with some caveats, as,

“an offence for which an individual … is capable of being sentenced to imprisonment for a term of 6 months or more”.

The Government have recently stated that this threshold rules out the use of internet connection records for a large number of minor crimes, including those which are not subject to a custodial sentence and those which are subject to only a one-month or a three-month custodial sentence. The Government have also indicated a number of offences in respect of which the use of internet connection records would be excluded if the threshold in respect of “other relevant crime” was increased from six months to a sentence that is capable of attracting a custodial sentence of 12 months or more. Those offences which would then be excluded include motoring offences such as joyriding, driving while disqualified and failure to stop or report an accident; an offence of criminal damage under £5,000; some sections of the Public Order Act which do not amount to violence; and certain immigration offences and some offences relating to the supply of intoxicating substances or controlled drugs.

Our amendment would increase the qualifying term of imprisonment from six months to 12 months or more. This would exclude the kind of offences to which the Government have referred. One accepts that such offences can have significant consequences, but we do not regard them as serious in the context of the purpose for which access to internet connection records is required—and nor do we think that raising the threshold to 12 months’ imprisonment in respect of other relevant offences makes it difficult to pursue matters related to the kind of offences to which the previous Home Secretary drew attention and to which I referred earlier.

I hope that the Government will feel able to give a helpful response to this amendment, which seeks to address concerns that access to internet connection records could be used in inappropriate circumstances for which the Bill is not intended—notwithstanding the fact that any such access to internet connection records must meet the necessity and proportionality requirement, which some might argue should exclude much low-level offending. I beg to move.

[Baroness Hamwee]

The noble Lord made a very persuasive case for this amendment and I do not think that he will be surprised to be supported by these Benches, given our concerns about internet connection records—so any further constraint on them is something that we would welcome. But he went into far more detail than that and we support him.

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

My Lords, the Government have consistently recognised that care must be applied to the acquisition of internet connection records and, importantly, that they should not be acquired for trivial purposes. That is why we brought forward amendments in Committee to put in place a number of restrictions to provide reassurance that the powers to acquire internet connection records would only ever be used proportionately. These amendments included a threshold which would mean internet connection records could only be used to investigate certain crimes which could attract a sentence of at least six months’ imprisonment.

This amendment raises the threshold for offences which are sufficiently serious that an offender can be sentenced to at least 12 months’ imprisonment, rather than six. The amendment rightly leaves unchanged the important exceptions in the Bill to the crime threshold. The House has recognised the need to ensure that internet connection records can be obtained for the investigation of certain specified types of crime—for example, those relating to cyberbullying and harassment, and those relating to a breach of a person’s privacy—which, for whatever reason, carry a lower sentencing limit.

We recognise that this amendment will provide further reassurance and ensure public trust in the use of these vital powers, whose value and importance have been widely recognised and acknowledged. In these circumstances, we are therefore content to accept the amendment.

--- Later in debate ---

Moved by

[Baroness Hamwee]

117B: Clause 84, page 66, line 18, at end insert—
“( ) A retention notice may not require a telecommunications operator to retain or disclose third party data unless the operator retains it for its own business purposes.( ) In this section “third party data” means communications data processed by the operator for the purposes of routing communications within an electronic communications network.”

[Baroness Hamwee]

My Lords, Amendment 117B is grouped with government Amendments 118 and 130. It aims at the same thing, but I think that the Government’s aim is better than ours in Amendment 117B. The amendments are about the retention of third-party data, so in order to move the business on we are very happy to support the government amendments in this group. I beg to move.

[Lord Keen of Elie]

My Lords, I do not understand why the noble Baroness wishes to insist on Amendment 117B.

Sorry, I am getting a great deal of advice from around the Chamber, and it is all immensely helpful.

Perhaps I may explain the purpose of government Amendments 118 and 130. As I said in Committee, we have been making good progress on drafting a clause that could put into the Bill the Government’s clear commitment that we will not require a telecommunications operator to retain third-party data.

It is important to be clear exactly what we are referring to as third-party data. Where one telecommunications operator is able to see the communications data in relation to applications or services running over its network but where it does not use or retain that data for any purpose, then it is regarded as third-party data. For example, if you use an internet access provider such as a home broadband provider to use the internet to log into a separate email provider in order to send an email, the broadband service might be able to see your access communications data in relation to the email service. If that information was not used or retained for any purpose by the broadband provider, the data would be considered to be third-party data.

I am pleased to say that we have now produced a clause that prohibits the retention of third-party data. We have tested this drafting with operational partners and with those telecommunications operators likely to be affected by the legislation and we are confident that it delivers the desired effect. That being so, the Bill essentially replicates the current position in RIPA, which is that data that already exist and could save a life or convict a criminal and so on can be accessed, but we are not insisting that data should be retained.

In these circumstances and in light of the opening observations by the noble Baroness, I commend government Amendments 118 and 130 in the event that we proceed.

[Baroness Hamwee]

I am sorry to have confused the noble and learned Lord. I was simply trying to explain that we are seeking to achieve the same thing, but that the Government have done better than we have. I beg leave to withdraw the amendment.

Amendment 117B withdrawn.

Investigatory Powers Bill

Baroness Hamwee Excerpts

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

[Lord Keen of Elie]

My Lords, this group contains a variety of government amendments relating to oversight arrangements.

Amendments 133 and 149 clarify the delegation of functions by the Investigatory Powers Commissioner or judicial commissioners. They make clear that certain judicial functions of the IPC or judicial commissioners cannot of course be delegated to staff. The amendments also make clear that, where the Bill requires a judicial commissioner to undertake a task, any of the judicial commissioners can perform that duty. However, the IPC can still delegate a function or functions to an individual judicial commissioner in order to create a de facto deputy, should he wish to do so. Delegation of certain functions is sensible and allows for a flexible and efficient working environment. Of course, it would be inappropriate if the IPC could delegate to a judicial commissioner the ability to recommend individuals to be appointed as judicial commissioners and so this function is reserved to the IPC.

Amendment 149 puts beyond any doubt that the inspectors and expert advisers who work for the Investigatory Powers Commissioner or a judicial commissioner will be working with their full delegated authority. This responds to concerns raised by the noble Baroness, Lady Hamwee, in Committee. We have been clear that the Investigatory Powers Commissioner will lead a powerful new oversight body which will rely on the work of inspectors and technical experts alongside the commissioners themselves. Those working under the authority of the commissioner will have the same right to access and interrogate information that the commissioners themselves would have. This amendment puts that beyond doubt. It makes it clear that commissioners can, formally and in accordance with statute, delegate some of their functions to the staff working for them.

However, it is right that not all functions should be capable of delegation. There are some activities and decisions, such as decisions to approve the use of powers, that should rightly be undertaken by judges. Therefore, this amendment also prevents those types of activities and decisions from being delegated to members of staff. These amendments strike the right balance between allowing members of staff to claim the full authority of the commissioner while reserving key judicial functions to those who are appropriately qualified to undertake them. I hope that that brings some satisfaction to the noble Lord, Lord Paddick, who was concerned to anticipate whether these amendments would go as far as he hoped; I believe that they do.

Amendment 135 is intended to provide further clarity about when a commissioner does not need to consider the duties set out in Clause 207(6) and (7). I hope that the House will agree that while the Investigatory Powers Commissioner and the judicial commissioners who will be working for him or her will be performing vital functions, it is important that the actual performance of those functions does not damage the public interest. Subsections (6) and (7) set out a number of duties on the commissioner: for example, that they should not act in a way that in their own opinion is prejudicial to national security, nor should they act in a way that they consider would compromise the safety of those involved in a security operation.

When the Joint Committee on the Draft Investigatory Powers Bill considered the first incarnation of this clause, it expressed concern that the duty placed on the commissioners as set out in these subsections was too broad. The Government then carefully considered this clause and agreed that there should be occasions on which a commissioner was not caught by these additional duties. For example, we put it beyond doubt that a commissioner could refuse to approve the decision to issue a warrant without worrying that they were breaching their duties in relation to national security. This amendment goes further still along that same path. It increases the list of circumstances in which a judicial commissioner will not be subject to the duty contained in subsections (6) and (7). The amendment expands the list to include all circumstances in which a judicial commissioner could be said to be exercising a “judicial function” or taking a judicial decision. I hope that this provides the House with further reassurance that we do not intend subsections (6) and (7) to be unduly limiting upon the important work of the commissioners.

Clause 223 provides for membership of the Technical Advisory Board, a non-departmental public body that advises the Secretary of State on cost and technical grounds if a notice given under Parts 4 or 9 of the Bill is referred by a telecommunications operator for review. Membership of the board must include a balanced representation of those on whom obligations may be imposed by virtue of notices and of those persons entitled to apply for warrants or authorisations under the Bill. At present, subsection (2)(a) of this clause requires that the membership of the board must include persons on whom obligations could be imposed by virtue of a data retention notice or technical capability notice—namely, telecommunications operators. Government Amendment 177 makes a minor change to this provision to add persons on whom obligations could be imposed by a national security notice. The amendment will not change the scope of the persons who must be represented on the board; indeed, a national security notice may only be given to a telecommunications operator. However, this minor change will make the meaning of the provision more clear.

Amendment 136 is a minor amendment to Clause 207, clarifying the policy intention that the Investigatory Powers Commissioner should be able to review the decisions of other judicial commissioners should this be necessary.

Amendments 137, 263 and 274 move the definition of a “statutory function” to Clause 239 alongside other definitions.

I turn now to Amendment 146. In Committee, the noble Baroness, Lady Hamwee, sought further clarity as to precisely who is covered by the definition of a “member” of a public authority. Having reflected on the matter, I can see that perhaps this definition is not as clear as it could be. Therefore, the Government have introduced this amendment to be clear that everyone who works for a public authority or who has worked for a public authority in the past will have to provide the IPC with all necessary assistance. I hope that that gives the House reassurance that the IPC will be able to hold those public authorities properly and clearly to account.

Amendment 147 is intended to put beyond doubt the fact that the Investigatory Powers Commissioner will have access to advisers, be they legal, technical or of any other nature, that the commissioner feels is necessary to undertake their statutory functions. This amendment provides that the Secretary of State, after discussion with the IPC, must provide the commissioner with services as well as with staff, accommodation, equipment and facilities. I would like to be clear, though, that the commissioner will be entirely free to choose their own advisers and that the Secretary of State will merely supply the resources to pay for those advisers. This will allow the commissioner flexibility to “buy in” whatever advice they need at whatever time.

Amendments 154 to 156 are technical amendments providing additional certainty around the definition of the chief and other surveillance commissioners who are being abolished by the Bill and replaced by the Investigatory Powers Commissioner.

Clause 221 already makes a number of amendments to Sections 65, 67 and 68 of RIPA in relation to the functions of the Investigatory Powers Tribunal. Amendments 163 to 175 are further technical amendments simply updating the relevant provisions of RIPA to ensure that it is clear that the Investigatory Powers Tribunal has the jurisdiction to investigate any claims or complaints relating to the provisions of the Investigatory Powers Bill. I beg to move.

[Baroness Hamwee]

My Lords, we welcome the amendments in this group. The provisions on delegation are indeed extremely helpful, as we were concerned about the chain of command and chain of responsibilities. I am glad to see the little amendment about being a “member” of a local authority—or HMRC, which I think was the other example I used. I had thought I was maybe going a bit too far in raising that point, but I am glad that I did. I am also glad to see the insertion of the reference to services for the IPC, which we were also concerned about. Having said that, we are happy with these amendments.

Amendment 133 agreed.

--- Later in debate ---

Moved by

[Baroness Hamwee]

134A: Clause 207, page 164, line 26, at end insert—
“( ) The Investigatory Powers Commissioner may publish material expressing views as to or recording legal interpretations of the provisions of this Act.”

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I also have Amendments 178A, 178B and 178C in this group.

We mentioned in Committee how inextricably intertwined are technical and legal matters in this area. I doubt that either Minister would disagree with that, having lived with this Bill as they have. Whether and how the Act will apply will be a matter of legal interpretation in the context of the technology that we have at the time. Our Amendment 134A would give the Investigatory Powers Commissioner power to publish material regarding legal interpretations. It is clear that he would keep the interpretations under review, so this amendment is simply a matter of having the power to publish them.

We welcome government Amendment 178 and its consequential amendments providing for a Technology Advisory Panel. We have three minor amendments seeking either clarification or adjustment. Subsection (1)(a) of the new clause provides for the panel to give advice on,

“the impact of changing technology on the exercise of investigatory powers”.

We would insert there a reference to the safeguards on the exercise of powers. That may be implicit, because the exercise of powers is to be subject to safeguards, but we think it should be explicit. After all, safeguards have been very much a feature of debate on the Bill in both Houses, and the Bill has changed quite a lot in spelling out what safeguards there are.

Similarly, Amendment 178B would insert advice on the interpretation of the law in the light of technological advances and necessary amendments to legislation. It is, if you like, a first cousin to Amendment 134A.

On Amendment 178C, given that the Investigatory Powers Commissioner and Ministers will be required to consider the privacy implications when exercising powers relating to new technology, it would be helpful for the Technology Advisory Panel to be required to have regard to those same matters—that is, those matters set out in the privacy clause, Clause 2. That would be not only helpful but appropriate. After all, as an advisory panel, it must have regard to how those exercising the powers would be constrained in exercising them. I beg to move.

[Lord Rosser]

I appreciate that I may be speaking prematurely since the Government have not moved their amendment on the Technology Advisory Panel. On the basis that they are not about to stand up and withdraw it, I thank the Government for the amendment establishing a Technology Advisory Panel, which reflects the recommendation by David Anderson QC in his report on the bulk powers provisions in the Bill, a report that we had secured during the passage of the Bill in the Commons and a recommendation on which we had an amendment in Committee in this House.

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Rosser, and will resist the temptation that he laid in my path. As he observed, the government amendments have been tabled to give effect to the recommendation of David Anderson’s bulk powers review.

The review demonstrated that the bulk powers are crucial. Mr Anderson’s report concludes that the powers,

“have a clear operational purpose”,

and,

“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”,

and that, where alternatives exist to their use,

“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or – crucially – slower”.

The review also concludes that bulk powers are vital across the full range of security and intelligence agency activity, including counterterrorism, cyberdefence, combating child sexual exploitation and organised crime, and supporting military operations; and that they have been used to disrupt terrorist activity, prevent bomb attacks, facilitate the rescue of hostages, thwart cyberattacks and save lives.

Mr Anderson’s report included a single recommendation, which was:

“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—

that is, the Investigatory Powers Commissioner—

“to advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability and development of techniques to use those powers while minimising interference with privacy”.

Following careful consideration of this recommendation, we agree with Mr Anderson’s assessment that those authorising, approving and overseeing the exercise of bulk powers must be alert to the impact of technological change on those powers’ utility and impact. These amendments therefore give effect to Mr Anderson’s recommendation in full.

The amendments provide that a Technology Advisory Panel must be established by the Investigatory Powers Commissioner and, in line with Mr Anderson’s recommendation, members of the panel would be appointed by, and clearly accountable to, the commissioner. They also provide that the role of the panel is to advise the Investigatory Powers Commissioner, the Secretary of State and Scottish Ministers on precisely those matters set out in David Anderson’s recommendation —namely, the impact of changing technology on the exercise of investigatory powers, and the availability and development of techniques to use such powers while minimising interference with privacy. The Investigatory Powers Commissioner would have the power to direct the panel to provide advice on any issue relevant to these matters.

While David Anderson’s review was in relation specifically to the bulk powers in the Bill, we agree with his view that there is no reason to restrict the scope of the Technology Advisory Panel just to those powers. Indeed, the panel giving advice in relation to the targeted powers could be just as valuable. As such, the amendments make clear that the panel’s role would extend to providing advice on all investigatory powers whose exercise is subject to review by the commissioner, which of course includes all the investigatory powers under the Bill.

To ensure that the panel would be able to undertake its role effectively, the amendments also make clear that its members would have the same right to access information as judicial commissioners. This means that any relevant person, such as any member of a public authority, must disclose or provide to a member of the panel all such documents and information as that member may require in order to carry out their functions.

We also agree with David Anderson that it should be mandatory for the Technology Advisory Panel to produce an annual report on the exercise of its functions. The amendments would therefore require that the panel make such a report to the Investigatory Powers Commissioner as soon as reasonably practicable at the end of each calendar year. At the same time as providing the report to the commissioner, a copy would also need to be sent to the Secretary of State and to Scottish Ministers where the report related to matters for which Scottish Ministers are responsible. To ensure sufficient transparency about the panel’s work, the amendments would require the Investigatory Powers Commissioner to include information about the work of the panel in their annual report.

I turn to the opposition amendments that have been tabled to the new clause establishing the Technology Advisory Panel. The first of these amendments would expand the role of the panel explicitly to provide advice to the commissioner on safeguards. While I appreciate what is intended by the amendment, I do not think it is necessary. The panel’s role is to advise on the impact of changing technology on the exercise of investigatory powers. Therefore, if technology changes in a way which means that existing safeguards are no longer appropriate or if new safeguards are needed to protect privacy, the panel can provide such advice to the commissioner and the Secretary of State. The panel must provide advice when asked to do so, but may also provide advice as it considers appropriate. While I appreciate the intent behind the amendment, I believe that the clause as drafted already provides for such advice to be given by the panel. Therefore, I do not believe that the noble Baroness’s amendment is necessary.

The second amendment to which she referred would expand the role of the panel to provide advice on an additional matter, namely,

“the impact of changing technology on the interpretation of the law and any amendments to legislation required to ensure the application of the provisions of this Act to changed technology”.

This amendment is neither necessary nor desirable. The role of the panel would, rightly, be squarely to provide advice on the impact of technology on the exercise of investigatory powers. This clearly defined role will ensure that members of the panel will be exactly what we need them to be: technical experts. David Anderson’s recommendation was designed to fill a gap. He was conscious that the Investigatory Powers Commissioner and judicial commissioners will be senior judicial figures. So, while they will be experts in the law and the interpretation of the law, they will not necessarily be experts in technology. What he felt was needed, and what the Government agree is needed, is technical experts to provide technical advice. In seeking to expand the panel’s remit to provide legal advice as well, I strongly fear we would end up with lawyers rather than technical experts. Indeed, David Anderson specifically warned that,

“the technological expertise of the TAP should not be unduly diluted”.

I pause to wonder whether one could ever dilute something with a lawyer, but I continue. That is exactly what this amendment would do, and that is why we firmly believe that it should be resisted.

This brings me to the amendment, which would permit the commissioner to make a report on his or her views about the legal operation of the Bill but would not place a duty on the commissioner to do so. I appreciate the sentiment behind the amendment, but I believe it is unnecessary. Clause 212 already gives the Investigatory Powers Commissioner a very wide remit to report on any matter relating to the functions of the judicial commissioners. That will, of course, permit the IPC, as he or she thinks fit, to report on the legal interpretation of the Bill. However, I hope that the IPC will not feel it necessary to do so, or at least to do so often. That is because the Bill serves to put beyond doubt the powers available to the state and the safeguards that apply to them. In the words of David Anderson, the Bill,

“restores the rule of law and sets an international benchmark for candour”,

but if the commissioner felt the need to report on the legal operation of the Bill, he could already do so.

Finally, Amendment 178C would require the panel to have regard to the same matters which a public authority must have regard to, as set out in Clause 2, which is referred to as the privacy clause. I appreciate the spirit of this amendment, but I believe it is unnecessary. Clause 2 is already clear that whenever exercising certain powers, such as to authorise warrants, all public authorities must have regard to the issues outlined in the privacy clause, but of course the Technology Advisory Panel will not be exercising such powers, so the amendment does not, in that context, make sense. If the intention is that when the panel gives advice it should bear in mind the various privacy considerations contained in Clause 2, then the amendment is also unnecessary, since the requirement, contained in government Amendment 178, that the panel advise on,

“the impact of changing technology on the exercise of investigatory powers”,

already includes advising on the ability to exercise those powers within the statutory framework and subject to all the safeguards contained in the privacy clause. Of course, the whole point of the Technology Advisory Panel, as specified in the government amendment, is to advise on techniques to “minimise interference with privacy”. So I really think that this amendment is unnecessary.

I invite the noble Baroness to withdraw the amendment.

[Baroness Hamwee]

My Lords, with the leave of the House, I recognise that this is Report stage. I was aware, of course, that the panel will not be a public authority, and that is why I framed Amendment 178C as I did: the Technology Advisory Panel would need to,

“have regard to the matters”,

in Clause 2, rather than be bound by them. I suggested the amendment because subsection (1)(b) of government Amendment 178 talks about, “minimising interference with privacy”, and that seemed to me not nearly as strong as the privacy clause, Clause 2, which we took to bits but welcomed earlier in the passage of the Bill. I beg leave to withdraw Amendment 134A.

Amendment 134A withdrawn.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I shall speak to Amendment 138 and the other amendments in this group, which would ensure that the Scottish Government are provided with appropriate means to engage with and support the work of judicial commissioners relating to devolved powers in Scotland.

Clause 210 allows a judicial commissioner to provide advice and information to any person. It requires the judicial commissioner to consult the Secretary of State first where providing advice and information might be contrary to the public interest. It is clearly appropriate that Scottish Ministers are similarly consulted if the provision of advice and information by the judicial commissioner may be prejudicial specifically to activities that fall under those Ministers’ responsibility. Accordingly, Amendments 138 and 139 would require the judicial commissioner to consult additionally the Scottish Ministers when providing information and advice that may be prejudicial to the prevention or detection of serious crime in Scotland, or the continued discharge of any devolved functions of a Scottish public authority.

Clause 216 sets out the funding arrangements for the Investigatory Powers Commissioner and the judicial commissioners. Amendment 148 would grant the Scottish Ministers the power to make such payments as they consider appropriate to judicial commissioners for work relating to the exercise of devolved functions by public authorities in Scotland. This simply maintains the current position, as the Scottish Government currently have the power to pay surveillance commissioners who carry out their functions wholly or mainly in Scotland such allowances as the Scottish Ministers consider appropriate. The surveillance commissioners will be abolished by the Bill, and their functions taken on by the Investigatory Powers Commissioner and the judicial commissioners. Accordingly, I beg to move Amendment 138.

[Baroness Hamwee]

My Lords, the noble and learned Lord may have answered one of my questions about Amendment 148. It was about whether this sort of arrangement is in place elsewhere because, on reading it, it seemed that there might be scope for some squabbles as to who should be responsible for paying how much. However, I think he said that this is already working satisfactorily under the current arrangements. My other question is about the term “allowances”, which in normal language means less than paying salaries. It does not address payment for facilities, infrastructure and so on. It seemed a curious term to use but that is probably because I do not understand quite how the system will work. Allowances, to most of us, sounds like more like an ex gratia arrangement.

[Lord Keen of Elie]

Might I be permitted to respond briefly to the noble Baroness on these points? First, these amendments have been agreed with officials in the Scottish Government and reflect an existing arrangement whereby the allowances of surveillance commissioners are determined by the Scottish Ministers in that context. “Allowances” is used there, as I understand it, because we are not relying upon them for payment of certain standing charges incurred in setting up the commissioners, for example.

--- Later in debate ---

Moved by

[Baroness Hamwee]

160: Schedule 7, page 231, line 26, after “profession” insert “or in the case of personal records, is held by a health authority,”

[Baroness Hamwee]

My Lords, Amendment 160 is a probing amendment, and the debate should be short. Schedule 7 provides for codes of practice. Our debates on the previous day of Report on journalistic material, which is referred to in paragraph 2(2) of Schedule 7, made me have a look at the personal records which are also referred to in that paragraph as being “relevant confidential information”. I was concerned about health records, because the information is described as that,

“which is held in confidence by a member of a profession”.

I wanted to check that health records would fall within this. A health authority obviously does not cover all of this. There are health records which are held for entirely proper purposes but not by people that one might describe as being professionals—or certainly not members of a profession. So I decided, even at this late stage, to table this amendment in order that we could understand precisely what is meant by confidential information when it consists of personal records. I beg to move.

[Earl Howe]

My Lords, Amendment 160 would amend Schedule 7 to the Bill to require that every code of practice made under the Bill must provide guidance in relation to personal records held by a health authority. I hope I can convince the noble Baroness that this amendment is unnecessary. Schedule 7 already requires that the codes of practice must make provision relating to personal records held by a member of a profession, which would include health records held by a medical professional.

The Government do not believe that it is necessary to impose a similar requirement for personal records held by a health authority, as that is a discrete issue which will not be relevant to all of the codes of practice. For example, it will not be relevant to communications data. Of course, that does not mean that the codes cannot include such material should it be necessary to do so. There is already a reference to a health service body in the draft personal datasets code, for example.

The codes of practice have been published in draft to help facilitate parliamentary scrutiny of the Bill, but they will be subject to consultation and separate further scrutiny by Parliament after Royal Assent. That will provide noble Lords and others with the opportunity to consider the detail contained in the codes, including to argue the case for the inclusion of particular issues in particular codes of practice. On that basis, I invite the noble Baroness to withdraw the amendment.

[Baroness Hamwee]

My Lords, that is helpful and it has enabled me to make my point, which may of course be one that we will come back to, depending on how we view the codes when we come to deal with them. I thank the Minister and beg leave to withdraw the amendment.

Amendment 160 withdrawn.

Investigatory Powers Bill

Baroness Hamwee Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I thank the Minister for moving these amendments, all of which we are happy to support and some of which respond to concerns we raised in Committee.

It may assist the House if I outline at this stage the purpose of Amendment 185A, in the names of my noble friend Lord Rosser and myself, which is about safeguards for disclosing overseas-related material for our foreign allies and agencies. That is material, possibly including information sent overseas by UK residents, obtained by our security and intelligence services under bulk interception warrants. It is an amendment which we hope the Government will feel able to accept.

In Clause 142, before any information obtained under a bulk interception warrant is disclosed overseas, the Secretary of State must ensure that arrangements and safeguards are in place regarding the retention and disclosure of such material, as the Minister has outlined. These requirements correspond to Clause 141 safeguards for domestic arrangements: that is, requiring that the number of people to whom the bulk-intercepted material is disclosed, the extent of disclosure and the number of copies made is limited to the minimum necessary. These safeguards also require the destruction of such material where there are no longer grounds for retaining it.

However, unlike Clause 141 for domestic arrangements, Clause 142 for overseas disclosure provides a wide discretion for the Secretary of State, whereby she or he must ensure equivalent safeguards only,

“to such extent (if any) as the Secretary of State considers appropriate”.

It could, therefore, be possible for the Secretary of State to decide that no safeguards are required in a particular case.

We recognise absolutely that the UK will need to share intelligence with overseas agencies and our amendment does not undermine the ability of UK agencies to do that. We also accept that overseas disclosure may be of a different nature, with particular political, diplomatic or security implications, all of which the Secretary of State must consider. However, the present wording is surely too wide and, if I have understood it correctly, would not be subject to subsequent review. Amendment 185A removes this very broad discretion and requires that it must appear to the Secretary of State that safeguards corresponding to the requirements under Clause 141(2) and (5) will apply in relation to disclosure overseas.

The Minister will not be surprised if I make reference to the Szabó v Hungary finding that minimum standards should be set out in law to avoid abuses of power and that,

“it would be contrary to the rule of law … for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power”.

The judgment notes that,

“the law must indicate the scope of any such discretion … with sufficient clarity … to give … adequate protection against arbitrary interference”.

I hope that the Government will feel able to accept the amendment as, if anything, extra safeguards may, indeed, be required where sensitive information is being disclosed abroad. We look forward to the Minister’s response on this.

[Baroness Hamwee (LD)]

My Lords, we, too, are happy with the government amendments in this group and we support Amendment 185A. The issue is about the discretion in the application of Clauses 141(2) and 141(5)—and, shortly, Clause 143—not their relevance. The term “appropriate” suggests to me a degree of discretion which may not be related to relevance. The term “mutatis mutandis” is not one commonly used in legislation, I think, but it is that provision that one wants to see—only changing what is necessary to be changed. I do not know the proper way of dealing with that, but “appropriate” seems to be inappropriate in the context.

--- Later in debate ---

Moved by

[Baroness Hamwee]

244: Clause 225, page 178, line 12, leave out from “receive” to end of line 14 and insert “their relevant costs”

[Baroness Hamwee]

My Lords, I shall also speak to Amendments 245 and 246. These amendments take us back to the question of the reimbursement of the operators’ costs. We have heard frequent assurances about the operators’ compliance costs and that they are to be met, but the words of the Bill do not quite live up to some of the narrative.

Our three amendments cover two alternatives; they would not all be possible. Amendments 244 and 245 would provide that arrangements were in force to secure for the operators the full amount of all relevant costs—“relevant costs” are defined later in the clause—not an appropriate contribution. As Clause 225(1) is framed, the Secretary of State must ensure,

“an appropriate contribution in respect of such of their relevant costs as the Secretary of State considers appropriate”.

With these two amendments, we seek to take out that element of discretion.

Amendment 246 would provide that if the contribution was not an equal amount, there should be regulations regarding the basis of how the contribution is calculated. Our amendments provide that the Secretary of State should lay regulations to that effect. It will be obvious to noble Lords that our reasons are transparency, equality between operators and the opportunity to consider the criteria—the factors, if you like—applied in calculating the contribution. In other words, our intention is scrutiny, using the opportunity that regulations give for debate of their content.

We have debated this matter on a number of occasions, and the Minister will be well aware of our concern. This is an attempt, at this almost last stage, to pin down just how the contribution will be made. I beg to move.

[Earl Howe]

My Lords, Amendments 244 and 245 are intended to ensure that communications service providers are fully reimbursed for their costs in connection with complying with obligations under the Bill. As the noble Baroness knows, this matter has been considered at length both in this House and in the Commons. It is important to recognise that service providers must not be unduly disadvantaged financially for complying with obligations placed on them aimed at protecting national security or combating crime. Indeed, the Government have a long history of working with service providers on these matters and we have been absolutely clear that we are committed to cost recovery.

I once again take the opportunity to reaffirm to the House a point that both my right honourable friend the former Security Minister and my right honourable friend the Prime Minister made very clear in the other place and that I made in Committee: this Government will reimburse 100% of reasonable costs incurred by communications service providers in relation to the acquisition and retention of communications data. This includes both capital and operational costs, including the costs associated with the retention of internet connection records.

The question that the House needs to consider, I submit, is whether it is appropriate for the Parliament of today to tie the hands of future Governments on this issue. That does not mean that we take our commitment lightly, or that future Governments will necessarily or lightly change course. Indeed, it is unlikely that any change in policy will ever take place. For example, the current policy has not changed since the passage of the Regulation of Investigatory Powers Act 2000, and so has survived Governments of three different colours, or combinations of colours.

The Bill adds further safeguards, requiring a data retention notice to set out the level of contribution that applies. This ensures that the provider must be consulted on any changes to the cost model and means that the provider could seek a review of any variation to the notice which affected the level of contribution.

Another question that I hope the House will consider is whether a communications service provider should be able to derive commercial benefit as a result of the obligations imposed on them in relation to the other powers under the Bill. Sometimes, it may be necessary for a communications service provider to upgrade part of its infrastructure to comply with an obligation imposed on it under a technical capability notice. As the communications service providers may be able to derive some business benefit from that upgrade, it is right that the legislation allows for the contribution to the costs to be appropriate to the circumstances.

Some noble Lords have expressed concern about the term “reasonable costs” and asked what it means. I hope I can provide some reassurance on that point. Significant public funding is made available to companies to ensure that they can provide assistance to public authorities in tackling terrorism, crime and other threats. As costs are reimbursed from public funds, the codes of practice make very clear that companies should take value for money into account when procuring, operating and maintaining the infrastructure required to comply with a notice. Were a company to select a solution that did not deliver best value for public funds, I am sure noble Lords would agree that it is absolutely right that the Government would need to consider carefully whether those costs were reasonable and therefore whether it was appropriate to reimburse the company in full.

The noble Baroness’s Amendment 246 acknowledges that there may be circumstances where it is appropriate for a communications service provider to be reimbursed less than its full costs. However, we do not think her proposed regulations provide the required flexibility. As I just explained, communications service providers may receive some business benefit from the changes made to their systems and it is appropriate that the Government are able to discuss these matters with them on a case-by-case basis, rather than be bound by general regulations. Indeed, while communications service providers would welcome an amendment to require 100% cost recovery in all cases, I suggest that they are unlikely to welcome regulations which enshrine in law circumstances where they would not receive full reimbursement.

I hope I have allayed any concerns about the Government’s position on costs and accordingly invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, until the last two or three sentences, I thought the noble Earl had made a much better case for regulations than I did. I am a little worried about his argument that regulations cannot provide for flexibility. Flexibility is not necessarily bad, but how it is exercised should be transparent, and that is what my amendment is driving at.

The noble Earl started his remarks by saying that the operators should not be “unduly disadvantaged”, and it is those words which caveat the commitment that has troubled us throughout our debates. We have tried, particularly with the third amendment, to meet the points made by the Government. I will obviously not pursue this any further; we have reached the end of the road. I have no doubt that someone will draw to our attention any problem in practice in future. I beg leave to withdraw the amendment.

Amendment 244 withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

258C: Clause 236, page 186, line 28, after “particular” insert—
“(a) report on any review by the Investigatory Powers Commissioner on the compliance of—(i) officers of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters, and(ii) members of the armed forces of the United Kingdom and officials of the Ministry of Defence so far as they engage in intelligence activities,with guidance from time to time issued on the detention and interviewing of detainees overseas and on the passing and receipt of intelligence relating to detainees; and(b) ”

[Baroness Hamwee]

I apologise to the House both that this is a rather inelegantly presented amendment and that it comes at a rather odd point in the Bill, but it covers a matter that was brought to our attention only very recently. I put thanks on the record to the organisation Reprieve for spotting the point. It would more naturally have come with clauses we debated on Monday, but we did not want to table a manuscript amendment for that.

In 2013, the Intelligence Services Commissioner was given additional functions by the then new Section 59A of RIPA. The commissioner is required, so far as directed by the Prime Minister, to keep under review the carrying out of any aspect of the functions of the intelligence services, their heads and the Ministry of Defence and forces engaging in intelligence activities.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, this amendment is unnecessary. The Government have already made it clear that the new Investigatory Powers Commissioner will bring together the existing responsibilities of the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner. That includes oversight of the consolidated guidance on the detention and interviewing of detainees. In addition, the Investigatory Powers Commissioner will have a bigger budget and a dedicated staff of commissioners and inspectors, as well as independent legal advisers, to ensure that the highest levels of independent scrutiny are maintained. In these circumstances, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, I chose the last words of my remarks quite carefully because it is the statutory basis of the current arrangements that is so important, which is why we raised it at this—I acknowledge—late stage. Obviously, I am glad to have these assurances. They do not answer my question but that position is now on the record. I beg leave to withdraw the amendment.

Amendment 258C withdrawn.

Investigatory Powers Bill

Baroness Hamwee Excerpts

3rd reading (Hansard): House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Pannick (CB)]

My Lords, when the Bill came to this House, legal professional privilege—that is, the right of members of the public to seek and obtain confidential legal advice—was not adequately protected. The Minister and the Bill team have listened to the concerns expressed by the Bar Council, the Law Society and noble Lords on all sides of the House. The Minister has held a number of meetings; he has looked anxiously at these issues with the Bill team and has responded on Report and again today. I am very grateful to him.

[Baroness Hamwee (LD)]

My Lords, I moved amendments at the last stage. Having listened today to the plaudits given to Members of your Lordships’ House and the other place for the constructive way the Bill has been taken forward from when it was first a glimmer in the Government’s eye, I want to add plaudits for the efforts made outside the Palace of Westminster. The noble Lord, Lord Pannick, referred to the Bar Council—even if not quite everything it wanted has been agreed to—and to the Law Society, whose work on behalf not of lawyers but their clients has been invaluable in this process. It has been heartening to take part in this process, given the outcome, and to see how seriously and carefully the Government and members of the Bill team, for whom I know this has proved something of an intellectual challenge, have dealt with it. We are grateful to the Government.

Amendment 6 agreed.