Investigatory Powers Bill

Baroness Hamwee Excerpts

Wednesday 7th September 2016 Lords Chamber

Moved by

[Baroness Hamwee]

210ZA: Clause 151, page 118, line 8, leave out subsection (5)

[Baroness Hamwee (LD)]

My Lords, my noble friend and I decided that I would be the one to confess how difficult I find it to understand Clause 151(5), so this is a probing amendment. I managed to make some progress in following the trail between different clauses and subsections this morning, but it involved something like copying and pasting chunks of wording in my head. I would therefore be grateful if the Minister could explain straightforwardly what follows from modifying a bulk acquisition warrant so that it no longer authorises or requires telecoms operators to do what is listed in Clause 146(5)(a). We are told to disregard Clause 151(2)(a), but the same criteria are then brought in by reference to Clause 146(1)(a) and Clause 146(2). I am sorry to be dim, but we decided that this probably justified seeking a short explanation.

I have complimented the draftsmen of the Bill—and I do not resile from that—as it is very helpful to have references to where definitions are to be found and so on, but given the complexity of the subject matter, this is a plea for the Bill to say, for example, “If a warrant is modified so that there is no requirement on a telecoms operator, then, in the case of renewal, the following”. That would have caused slightly less of a scrambled brain. I beg to move.

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

My Lords, as the noble Baroness has explained, Amendment 210ZA relates to the modification of a bulk acquisition warrant for the purpose of allowing examination of material after acquisition has ceased. Here, we come back to the issue that we debated earlier in relation to Amendments 201ZC and 217C, which covered bulk interception and bulk equipment interference warrants. The amendment would remove important technical provisions from the Bill—a point that I made in that earlier debate.

The Bill enables a bulk acquisition warrant to be modified such that it no longer authorises the acquisition of any material but continues to authorise the selection of material for examination. The circumstances catered for here are limited to a situation where it may no longer be necessary or possible to continue the collection of data, such as where a communications service provider goes out of business, but the data collected up to that point under a warrant remain pertinent. In circumstances such as those, it may continue to be necessary and proportionate to examine data that have already been collected under that warrant.

Clause 151(5), which the amendment would remove, simply clarifies that a warrant that has been modified in that way remains a valid bulk warrant if the Secretary of State considers that examination of the acquired data remains necessary and it is approved by a judicial commissioner. That is necessary because Clause 146(5) states that one of the conditions of the warrant is that its main purpose is to acquire data. But, of course, a warrant that has been modified in the manner I have described will no longer meet that condition because it will no longer authorise the collection of data.

I hope that that explanation clarifies any uncertainty in the noble Baroness’s mind and that she will agree that these provisions are necessary.

[Baroness Hamwee]

My Lords, that is extremely helpful, and I got an example without asking for it. I beg leave to withdraw the amendment.

Amendment 210ZA withdrawn.

--- Later in debate ---

Moved by

[Baroness Hamwee]

231ZD: Clause 199, page 152, line 41, leave out subsection (3)

[Baroness Hamwee]

My Lords, I shall speak also to Amendment 231ZE. These amendments are tabled in my name and that of my noble friend Lord Paddick. They are both probing amendments.

Clause 199 provides for time limits on certain examinations. I accept that the first of our amendments is technically not a good one—but it is a probing amendment. It would take out the subsection that states that the “permitted period”—I do not think I need for this purpose to spell out what it is—

“begins when the head of the intelligence service first forms”,

certain beliefs. My noble friend and I were intrigued as to how it could be established and recorded that someone had formed a belief—and, indeed, had first formed a belief. I am not sure about “first formed”, because once a belief is formed, it is established, so it is not going to be formed a second time. But that is not the question, really. We felt that there was a danger that acknowledging the formation of the belief, which triggers the start of the period, could be delayed so that the period itself did not begin to run. So it is a question of safeguarding.

Amendment 231ZE would reduce the time before the permitted period comes to an end. It would make it one month rather than three months. The permitted period is the period in which the head of the intelligence service has to take certain steps—having, in effect, discovered that information which has been obtained includes data relating to individuals who are not, in fact, of interest to the service. So, overall, a good safeguarding clause would properly ensure that information which is not needed is dealt with in an appropriate way. Our concerns are that, having got as far as acknowledging the need for all of this, there are a couple of points at which the arrangements might not be applied as rigorously as one would expect. I beg to move.

[Lord Keen of Elie]

My Lords, Clause 199 explains the process of, and sets the time limits for, the initial examination of a dataset. The noble Baroness, Lady Hamwee, has explained the purpose of Amendments 231ZD and 231ZC, and I am obliged to her for indicating that these are probing amendments. I make no point about the technicalities of the proposed amendment, and understand the underlying rationale for making these probing amendments.

Although there may be occasions when a security and intelligence agency knows exactly what it has received, that is clearly not always the case. To give a simple example, an agency may receive a USB stick that it believes contains files relating to an organisation engaged in terrorist activity. This might, or might not, be a bulk personal dataset, and needs to be subject to an initial examination to determine whether it is a bulk personal dataset. To be absolutely clear, this initial examination process can only establish what the data are: in particular, whether this is a bulk personal dataset or not, and whether there is a case for retaining it. They cannot be searched or selected for examination without a warrant, so delaying applying for a warrant is not a way for the intelligence agency to work round the system provided for in the Bill.

It is not in anyone’s interest to delay the process. The agency cannot start using the data until a warrant is issued, and the agencies will therefore want to get warrants in place as quickly as possible, particularly as there may be concerns about whether threats and opportunities will be missed by reason of any delay. More generally, the Bill places an obligation on the agency to apply for a warrant,

“as soon as reasonably practicable”,

meaning that if it is possible to apply for a warrant sooner than the deadline set out in Clause 199 the agency would do so. The time limit here is just what I would term the “hard stop” provision within the clause. Amendment 231ZD is therefore unnecessary and indeed, in a sense, unhelpful.

From the point where the intelligence agency believes a dataset created in the United Kingdom includes personal data, as the noble Baroness, Lady Hamwee, noted, it has three months to complete the initial examination and apply for a warrant to retain and, if necessary, select data for examination from the dataset. Amendment 231ZE seeks to reduce this period from three months to one month.

The Government do not think this is appropriate. The structure and format of some bulk personal datasets can be highly complex, even if created in the United Kingdom. In some cases, it can take considerable time to be confident that the structure is sufficiently understood. Only then can the intelligence agency accurately describe the information contained in the dataset and know whether it is necessary and proportionate for it to be retained. There may be other factors that require time to resolve, including, for example, technical difficulties such as formatting, compression and encryption. Indeed, there may be language issues: the dataset, even if created in the United Kingdom, may be in a foreign language. In addition to that, the size of the dataset can be a factor. Three months is therefore considered the appropriate time limit for this initial examination. However, I underline the point that this is an outer limit—this is the hard limit for that.

Again, I emphasise to the noble Baroness that this three-month time limit does not provide a way for the agencies somehow to circumvent the safeguards within the Bill. The dataset in question cannot be used for intelligence purposes until a specific BPD warrant is in place or until the provisions set out in chapter 6 of the draft code of practice, which relate to authorising retention and use of a dataset fitting within a class warrant, are met. In these circumstances, I invite the noble Baroness to withdraw the amendment.

[Baroness Hamwee]

I am grateful for that explanation. It has helped me to understand the process but it has also made me wonder whether in Clause 199(3) the term “belief” is the correct one. The way that the Minister has described it, it is more of a suspicion—I do not mean that in any negative way—or a concern. A “belief” suggests that there has been a thought process arriving at a conclusion. I do not expect him to respond to that now unless he wants to but I am left wondering, and he might want to look at this again, whether this wording quite describes the completely cogent explanation about the clause that we have just heard. For the moment, though, I beg leave to withdraw the amendment.

Amendment 231ZD withdrawn.