Investigatory Powers Bill

Debate between Baroness Hamwee and Earl Howe

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

[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.

Investigatory Powers Bill

Debate between Baroness Hamwee and Earl Howe

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

[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.

--- Later in debate ---

[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.

Investigatory Powers Bill

Debate between Baroness Hamwee and Earl Howe

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

[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.

Investigatory Powers Bill

Debate between Baroness Hamwee and Earl Howe

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

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

Investigatory Powers Bill

Debate between Baroness Hamwee and Earl Howe

Monday 12th September 2016 Lords Chamber

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

My Lords, as the noble Baroness, Lady Hamwee, explained, Amendment 234A deals with the review of the operation of this legislation. The amendment would reduce the length of time for which it has been in operation from five years and six months to two years and six months. It is of course good practice to conduct post-legislative scrutiny, particularly for legislation as significant as the Bill. That is what the Bill provides for. Notwithstanding any suggestion by virtue of the amendment that the House might be eager to revisit the issue within the scope of this Parliament, I suggest that reducing the time for which the legislation had been operating before the review takes place would be profoundly unhelpful in assessing its utility.

First, the timing of when the review should occur is precisely as the Joint Committee convened to scrutinise the draft Bill recommended. As the noble Lord, Lord Murphy, said, that committee considered that work on a review,

“should begin within six months of the end of the fifth year after which the Bill is enacted”.

We have followed that lead.

I was asked what kind of review this would involve. As I mentioned, the Bill attempts to give effect to the recommendation of the committee. We cannot, clearly, bind Parliament in the actions that it takes, so the Bill provides for consideration of any report by a committee of Parliament. I hope that again accords with the steer that the Joint Committee gave us.

Of course, we must ensure that before such a review takes place, all the Bill’s provisions have commenced and been in effect for a sufficient period so that a review is meaningful and effective. As the Joint Committee again concluded:

“The evidence of several years’ operation will inform the debate”.

A review after two and a half years runs the risk that processes and capabilities will not have had sufficient time to bed down before they are subject to a formal review. We need to bear in mind, in particular, that communication service providers will need to implement legislation. Surely the last thing we want is for them to turn round after a short time, if the noble Baroness’s proposal gains traction, and say that it is too soon. We do not wish to create uncertainty for them at this stage. They have to implement this, as has everybody else. The noble Lord, Lord Murphy, rightly said that it is important that the impact of the Act should be reviewed and the noble Baroness, Lady Hayter, also correctly spoke of the need to monitor how the Act was working. I do not disagree with either.

However, I would just point out that an urgent review of the Act is not necessary, given the strong oversight provided in the Bill by the Investigatory Powers Commissioner and the requirement that the commissioner should publish annual reports. The exercise of the powers provided for under the Bill will be subject to the ongoing oversight of the Investigatory Powers Commissioner, and his report will be laid before Parliament. I was grateful for the intervention of the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He referred to David Anderson’s recommendation to establish a technical advisory panel. I am reserving judgment on that recommendation in the light of our debates last week. David Anderson said, in paragraph 9.3, that the point of the TAP would not be to provide an alternative oversight function, or to place new regulatory burdens on the SIAs. Rather it would serve to inform the Secretary of State and enhance the work of the Investigatory Powers Commissioner by ensuring that both are kept as up-to-date as possible with the fast-moving technologies whose use they are asked to approve. There is good sense in not overlaying the oversight that the Act will have too heavily. For all those reasons, I invite the noble Baroness to withdraw her amendment. I hope that what I have said convinces her that there is some logic to the Government’s position.

[Baroness Hamwee]

My Lords, before I respond, I wonder whether the Minister can tell the Committee when it is expected that the provisions of the Bill will commence. Does he have that information?

[Earl Howe]

I do not have that information. It is of course possible that different parts of the Bill will commence at different times, but I shall come back to the noble Baroness in writing and send a copy to all noble Lords who have taken part in the debate.

[Baroness Hamwee]

I am grateful to the Minister for his response, and I am sure he will understand the importance of the question of the extent to which the Government have decided when the provision should commence. I imagine they must have a programme in mind. He says that the timing is precisely as the Joint Committee proposed, but it is not, as we have heard, the type of review proposed by the committee, as I understand the report. Yes, of course we want to avoid uncertainty, but we would argue that a shorter period would give greater confidence to the communication service providers and others that changes in technology and the operation of the Bill will be made as soon as they reasonably should, to assist them as well as everyone else.

The Minister mentioned the IPC’s report under Clause 210, but I believe the Secretary of State does not have to act on it. The Minister mentioned that the technology advisory panel is primarily about technology, although David Anderson argued forcefully that it should comprise more than technicians. I do not want that word to sound pejorative—I am searching for a more respectful term—but I am sure the Committee will understand.

This is an important issue, and I cannot promise that we shall not return to it on Report.

Investigatory Powers Bill

Debate between Baroness Hamwee and Earl Howe

Wednesday 7th September 2016 Lords Chamber

[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.

Investigatory Powers Bill

Debate between Baroness Hamwee and Earl Howe

Monday 5th September 2016 Lords Chamber

[Earl Howe]

My Lords, let me turn first to Amendments 194CA and 194CB in the names of the noble Lord, Lord Rosser, and the noble Baroness, Lady Hayter, which deal with Clause 214.

Clause 214 allows a Secretary of State to modify the functions of the Investigatory Powers Commissioner or other judicial commissioners. This will allow the functions of the judicial commissioners to be extended, but also to be changed to reflect any potential changes to the investigatory powers that the commissioners oversee. The judicial commissioners will oversee the use of a wide range of powers, including some in other enactments. Those powers may in due course be changed or updated, perhaps in the same way that this Bill is replacing parts of RIPA. In such a case, it is right that the functions of the judicial commissioners could be modified to reflect the changes. However, this may not mean an extension of the judicial commissioners’ oversight. The change may be entirely neutral—for example, a public authority changing its name or something of that sort. If these amendments were accepted, such a sensible change would not be possible.

I hope I can reassure noble Lords that this power will not be used to reduce the oversight provided by the commissioners. The Government have been very clear on this point. It is also worth reminding the Committee that this power is subject to the affirmative procedure and that Parliament will have to approve any regulations made under this clause. So any attempt to diminish the commissioner’s oversight responsibilities, were such an attempt to be made, would no doubt be scrutinised extremely carefully by each House of Parliament, particularly in the light of the assurance that I have just given.

The Committee will recall that the Delegated Powers and Regulatory Reform Committee expressed a concern about the breadth of the order-making power, as was made clear by noble Lords. It recommended that it should not extend to the IPC’s functions relating to the authorisation of warrants. The Government accepted this recommendation, and this clause has been amended accordingly.

Amendments 194CC, 194CD and 194CE deal with changes to Schedule 7. Amendment 194CC would require the Secretary of State to consult persons interested in a code of practice before issuing such a code. This amendment is unnecessary as the clause as drafted provides for the publication of codes in draft and for the Secretary of State to consider representations on the draft codes. In order for the Secretary of State to hear representations on the code, the Bill requires a consultation to be conducted.

I understand that Amendments 194CD and 194CE are intended to probe whether the use of “have regard to” or “take into account” strengthens or weakens the effect of the consideration of a failure to comply with a code conducted by a supervisory authority or a court or tribunal. Having taken advice on the matter, I can assure your Lordships that the choice of language is based on the context and it is appropriate to refer to a court or an oversight body taking matters into account. However, that form of words does not provide any greater or lesser degree of consideration.

Amendments 238A, 238B, 240A, 240B and 242A I believe respond to the recommendations made by the Delegated Powers and Regulatory Reform Committee in its report on this Bill of 8 July 2016. These amendments relate to the parliamentary procedure used where primary legislation is modified and to the power to make consequential amendments not being time-limited in relation to Clause 242(2) and Clause 242(3).

The proposed amendments to Clause 238 seek to ensure that whenever a delegated legislative power is used to modify primary legislation the affirmative procedure should apply. This is a point which has been raised by the committee in the context of a number of Bills, and I am afraid that it is one that the Government cannot accept. Where secondary legislation amends the text of primary legislation, the Government agree that such legislation should be subject to the affirmative procedure. The Government have committed that, wherever possible, changes to primary legislation will be made by textual amendment rather than by modifying the primary legislation. There are likely to be relatively few occasions when the powers to otherwise modify primary legislation need to be exercised—I apologise for the split infinitive which the noble Baroness pointed out. However, it remains the Government’s position that there are some cases where it is necessary to modify primary legislation and that it is not possible to specify which kinds of modification of primary legislation should attract the negative procedure and which the affirmative procedure without creating legal uncertainty.

The Government have set out their position in the Delegated Powers Committee memorandum on this Bill, and in relation to a number of different Bills, and remain of the view that the position is justified and that the powers in the Bill are subject to the appropriate level of parliamentary scrutiny. I have in fact today written to my noble friend Lady Fookes, the chair of the Delegated Powers and Regulatory Reform Committee, setting out the Government’s position and the reasons for it in response to the committee’s view on this issue and on the point raised by the committee on the power to amend Schedule 8. I will, of course, place a copy of that letter in the Library of the House. I therefore ask that these amendments be withdrawn.

The proposed amendment to Clause 242 seeks to constrain the power to make consequential amendments so that it could not be used to amend legislation passed after this Bill receives Royal Assent. Clause 242 contains the usual power to make amendments to other legislation consequential on the provisions in the Bill. However, as currently drafted, the power would permit the amendment of legislation passed at any time in the future. Amendment 242A would in fact go further than the committee’s recommendation, which recognised the necessity of amending of enactments passed or made during the current Session. I can confirm that the Government will bring forward amendments on Report which would restrict the powers conferred by Clause 242 and the similar power in Schedule 8 to the Bill in response to the committee’s recommendation.

The power to make consequential amendments to enactments passed in the same Session is necessary because other Bills before Parliament at the same time as this Bill touch upon the powers and public authorities covered by this Bill, such as, for example, the Policing and Crime Bill. Since it is impossible to predict how those Bills or the Investigatory Powers Bill may be amended during their parliamentary passage, and which Bill may achieve Royal Assent first, it is necessary to allow for the possibility of consequential amendment of future enactments.

I have just been handed a note to amplify what I said on Amendment 194CC in relation to consultation on codes of practice, and will just add that consultation comprises publication of a draft and consideration of any representations made. I suggest to the noble Baroness that publication, by its nature, is conspicuous and is the means by which government consultations are established. I hope she is satisfied on that point.

Finally, government Amendment 241, which is in this group, makes it clear that a statutory instrument containing regulations made under Clause 50(3)—the designation of relevant international agreements under which interception may be carried out—is subject to the negative parliamentary procedure. This amendment is consequential on the amendment to Part 2 which was considered in July. I hope that the House will agree to that amendment when I come to move it.

[Baroness Hamwee]

My Lords, I apologise for the rather cheap gibe about the split infinitive. I recognise that I am old-fashioned, and styles have moved on. It would obviously be inappropriate to pursue the points made by the Delegated Powers and Regulatory Reform Committee at this point, given that the Minister has written to it, and we will wait to see if anything more happens on that. However, I will just say, on the question of consultation, that the Government are often very good at being proactive in consulting and at contacting organisations which they know have an interest. That is something that should be encouraged. To my mind, consultation which simply involves publication on a website—or perhaps in common parlance, “slipping something out”—the day before a recess and waiting to see whether there are any comments is not good practice. That was why I was concerned to spell this out. I am not of course suggesting that anyone on the Front Bench at the moment would indulge in such a practice, but it has been known to happen. This is not an unnecessary point, but I will not pursue it this evening.

Investigatory Powers Bill

Debate between Baroness Hamwee and Earl Howe

Tuesday 19th July 2016 Lords Chamber

[Earl Howe]

No, I do not believe it does. A lot of these overheads, such as those relating to back-office functions, can be shared with other arms of the executive, so my advice is that these would be extra costs that would have to be paid for by the new body.

The new commission will also have to appoint a board and at least three non-executive directors. That would certainly add significantly to the expense of creating a new oversight body with, I contend, very little benefit in the quality of the oversight that it provides. Creating a commission would not serve to advance independence, which was one argument put forward by the noble Baroness. The current oversight bodies, the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner, are provided for in statute in the same way as we propose to provide for the Investigatory Powers Commissioner. The model we propose will allow the oversight bodies to focus on their core tasks of inspections and investigations without tying them up in too much administration; that is a sensible approach. I hope that the noble Baroness will feel able to reflect on that between now and Report.

As for the comment that the model we propose does not respond to the recommendations about separating powers, it will be for the Investigatory Powers Commissioner to decide how to arrange and run their office. The commissioner will have responsibility for two distinct functions and will have sufficient staff to undertake them independently of each other. However, as David Anderson recognised, there are distinct advantages in having that relationship, even if it is an arm’s-length one, between the two functions. An example of where David Anderson felt that the relationship will be useful is when the judicial commissioners could specifically advise the inspectorate on matters to look out for on their inspections. The dialogue would be lost if the two functions were kept completely distinct.

[Baroness Hamwee]

Before the noble Earl moves on, 20 minutes ago I was not hugely enthusiastic about a single body; I have become a little more so as the debate has gone on. I have one question and another point. Have the current commissioners been consulted about the Bill’s proposals for the structure? What is their view about a single body as distinct from the parallel arrangements? Secondly, I absolutely understand that if you create a new body you create the need for some administrative—bureaucratic, if you like—arrangements, but for the argument to hinge too much on savings really worries me. As my noble friend says, surely, from paperclips onwards, the needs will be identical. If savings are expected from this, there must be concern that the functions will be affected.

[Earl Howe]

I understand the noble Baroness’s strength of feeling on this. Part of the purpose of our debates in Committee is to enable all of us to reflect on the points that have been made between now and Report, and I will certainly go away and do that. The answer to her first question is yes, the current commissioners were consulted about bringing the functions together into a new commissioner, and they approve of creating that single function.

Amendment 194A would require the Secretary of State to provide the judicial commissioners with support and assistance. While I agree with the intention behind the amendment, it is unnecessary. In terms of support, Clause 213 already places a duty on the Secretary of State to provide the IPC with staff, accommodation, equipment and other facilities. As regards assistance, Clause 211 requires the Secretary of State to provide the IPC with any access and assistance as necessary to fulfil its functions. Amendments 194B and 194BA are more specifically about the funding and resources that the IPC receives from the Secretary of State.

I fully support the principle that the IPC should be both well resourced and well supported. The impact assessment the Government have published makes it clear that the predicted future funding of the IPC is £7.4 million per annum. That is an increase of 131%—well over double—when compared to the combined funding that the existing commissioners received before the Bill was introduced. I also appreciate that the needs of the commissioner may change over time. Therefore, Clause 210(2)(d) makes it clear that the annual report of the IPC must contain information about,

“funding, staffing and other resources”.

I am certain that the IPC would use this opportunity to alert the Prime Minister if it felt that it was under-resourced in any fashion. The Prime Minister must then lay this report before Parliament, so Parliament could then take up the cause of the IPC if we ever reached that state of affairs. Therefore, I do not believe that Amendments 194B and 194BA are necessary.

Amendments 194E and 194F propose changes to Clause 220 of the Bill. This clause provides for the continued existence of a technical advisory board, currently provided for in Section 13 of RIPA. It also provides for the make-up of the technical advisory board to be prescribed by the Secretary of State in regulations. Amendment 194E would make a minor change to this clause. From what the noble Baroness said, I do not think that the purpose of the amendment is to ensure that the membership of the existing board is replaced in its entirety—that we should scrap the existing board and start from scratch. If I am wrong about that, perhaps she could indicate as much, but I did not gather that from her comments. But it might be helpful for me to provide some additional information about the make-up of the current board.

Current board members were appointed from the very small pool of people who have knowledge of the cost and technical feasibility of developing the technical capabilities used to give effect to warrants. In line with RIPA and the provisions in this clause, there is a balance of representation from the telecommunications industry and from the agencies entitled to apply for warrants or authorisations under the Bill. The role of these experts is to advise the Secretary of State on cost and technical grounds if an interception notice given under RIPA is referred for review.

The Investigatory Powers Bill extends this important safeguard to data retention notices, national security notices and all technical capability notices. It is of course right that board members must be able to meet the requirements of this new role. So, in response to the recommendations of the House of Commons Science and Technology Committee on the draft Investigatory Powers Bill, the Government committed to audit the membership of the current board to identify any gaps in knowledge; those will be addressed as a priority through the recruitment of new members.

It may be helpful for me to make the Committee aware that the board’s independent chair may, if required, call on external expertise to assist the group in deciding reasonable costs and the technical feasibility of an obligation. Furthermore, regulations under Clause 220 may also provide for other persons to be appointed to the board as the Secretary of State considers appropriate. This ensures that the technical advisory board is sufficiently flexible to be able to seek particular expertise as required.

I note that the noble Baroness feels that the word “continue” is inappropriate in this context, but I argue the opposite. If the board exists at the moment, it is perhaps not the right thing implicitly to deny its existence by failing to include a word that acknowledges the fact. I hope that we are not dancing too much on the head of a pin there, and that she will not insist on the change that she has proposed.

--- Later in debate ---

[Earl Howe]

I understand the point made by the noble Lord, but I think it would be unimaginable that Parliament would not protest if there were a redaction in the report around the commissioner’s funding. Redactions, in any case, are made only on national security grounds, not on matters of this nature. Nevertheless, I will consider carefully over the summer period what the noble Lord has said, and no doubt we can return to these matters at a later stage.

[Baroness Hamwee]

My Lords, I have been listening to what the Minister has been saying. It is not too much of a stretch to imagine an argument that goes, “We can’t publish comments about the funding available because that would give clues about the severity of the security system situation or about the effort that is or is not going into dealing with it”, so it is a serious point. Regarding the phraseology in Clause 220, I was never much of a dancer so I hope the Minister will forgive me. I accept that it is a continuation of an existing board, but that is not how it appears in the Bill. I think it would benefit from being anchored by a reference to the existing board. I do not want to bring back such a minor point on Report, so I thought I would make it now and see if it gained any traction.

Investigatory Powers Bill

Debate between Baroness Hamwee and Earl Howe

Wednesday 13th July 2016 Lords Chamber

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

My Lords, Clause 48 maintains the position set out in RIPA that interception is lawful in certain circumstances in psychiatric hospitals. The clause sets out that interception is lawful if it takes place in any hospital premises where high-security psychiatric services are provided and is conducted in pursuance of, and in accordance with, any relevant direction given to the body providing those services at those premises.

While the clause provides that the interception is lawful, it is the relevant direction under the National Health Service Act 2006, the National Health Service (Wales) Act 2006, the National Health Service (Scotland) Act 1978, or the Mental Health (Care and Treatment) (Scotland) Act 2003, that sets out how and when the interception may be conducted—that is not a function of this Bill.

Clause 49 provides that certain interception carried out in relation to immigration detention facilities is lawful. The Immigration and Asylum Act 1999 contains powers for the Secretary of State to make rules for the management of immigration detention facilities, and Clause 49 provides that interception carried out in accordance with those rules will be lawful. At present, rules have been made only in respect of immigration removal centres—the Detention Centre Rules 2001. The interception of communications in relation to immigration removal centres, in line with the statutory rules, is purely for the purposes of maintaining the security of those centres or the safety of other persons, including detainees. It is right that officers should be able, for example, to intercept attempts to send controlled drugs or other contraband material into particularly sensitive and secure environments.

Contrary to speculative claims, this power can never be used to determine the outcome of any person’s asylum claim. Again, the precise circumstances in which interception may take place in immigration detention facilities are not a matter for the Bill. To be clear, the purpose of this clause is not to determine rules relating to the management of immigration detention facilities. The purpose of the clause is simply to make clear that conduct authorised and regulated under existing legislation—specifically, the Immigration and Asylum Act 1999—would be lawful.

Rules made under the 1999 Act about the regulation and management of detention facilities are subject to negative resolution, as specified in the Act and as agreed by Parliament. Such rules in relation to interception would be based on the clearly legitimate purposes already contained in the Detention Centre Rules 2001. The interception of communications in relation to immigration removal centres, in line with the statutory rules, is purely for the purposes of maintaining the security of those centres or the safety of other persons, including detainees, as I explained.

I hope the noble Baroness will accept that the amendments are unnecessary and that the clauses should stand part of the Bill.

[Baroness Hamwee]

My Lords, I have found it difficult throughout the Bill to accept that something is necessary just because it is in RIPA or is currently in effect. I am afraid I gave up chasing through the references in Clause 48—I thought my iPad was going to give out on me if I asked www.legislation.gov.uk any more questions on Sunday morning. I should have pursued this, and for that I apologise to the Committee. I think I am reassured by the explanations I have. I will go away and read the record, but I am grateful to the noble Earl.

--- Later in debate ---

[Baroness Hayter of Kentish Town]

My Lords, as was mentioned, Amendment 89 stands in my name and that of my noble friend Lord Rosser. Clause 222(6) contains what is to me the unusual phrase:

“Different levels of contribution may apply for different cases or descriptions of case but the appropriate contribution must never be nil”.

“Must never be nil” is a slightly strange phrase, especially given that someone who, until a few hours ago, was the Home Secretary but is now the Prime Minister said on Second Reading:

“I reiterate … that … 100% of the compliance costs will be met by the Government”.

She was asked to provide a long-term commitment for that and said,

“we are clear about that in the Bill … it is not possible for one Government to bind the hands of any future Government in such areas, but we have been clear about that issue”.—[Official Report, Commons, 15/3/16; col. 821.]

However, being clear about the contribution which must never be nil is not what I call clarity.

Amendment 89 simply takes the then Home Secretary’s words as used in Parliament that the Government would meet 100% of the compliance costs, with full cost recovery for communication service providers, which, after all, have to implement the legislation. It is important to write it into the Bill to ensure that the financial impact of the legislation is transparent, not hidden, and to give forward confidence to those companies, whose activity in this country is already a little wobbly thanks to Brexit, that they will not at some point be hit by unexpected and unavoidable costs.

As was mentioned, Amendment 89 also allows for a proper audit to ensure that operators do not provide unduly high costings. Obviously, they can make no profit from these procedures because they are a departure from normal business, but they need those costs to be met. Cost recovery could be significant, but the Bill does not seem to put any limit on it at present. We will depend on the good will of these companies to make the Bill effective. We should not charge them for their willingness as well.

[Earl Howe]

My Lords, this amendment seeks to ensure that communications service providers are fully reimbursed for their costs in connection with complying with obligations under this Bill, and that arrangements for doing so are in place before the provisions in the Bill come into force. It is, of course, important to recognise that service providers must not be unduly disadvantaged financially for complying with obligations placed upon them. Indeed, the Government have a long history of working with service providers on these matters. We have been absolutely clear that we are committed to cost recovery. I want to reaffirm to the Committee a point that my right honourable friend the Security Minister made very clear in the other place: 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. I hope that that assurance is helpful.

The key question that this Committee needs to consider is whether it is appropriate for the Government of today to tie the hands of future Governments on this issue. I wonder whether, on reflection, the noble Baroness thinks it right to press for that. That does not mean that we take our commitment lightly or that future Governments will necessarily change course. Indeed, I suggest that it is unlikely ever to be the case; 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.

This Government have been absolutely clear that we practised cost recovery and we have been consistent in our policy for a very long time. Indeed, this Bill adds additional 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 also means that the provider would be able to seek a review of any variation to the notice which affected the level of contribution. The Government already have arrangements in place for ensuring that providers receive appropriate contribution for their relevant costs without delay, so the amendment that seeks to ensure that they are in place before the provisions come into force is, I suggest, unnecessary. Accordingly, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, I wrote down a number of phrases, including “not unduly disadvantaged”. In the light of the absolute, clear commitment to full cost recovery, I wonder whether “unduly” is the right term. I also wrote down “100% of reasonable costs” that ought to be covered by the audit provision. The noble Earl has just referred to an appropriate contribution for relevant costs. I am sure he will understand where I am going with these terms.

The noble Earl asks whether it is appropriate to tie the hands of future Governments. I would say that in this instance it is appropriate, because a future Government can bring forward future legislation and that would be the way to do it—not to seek to resile from what everyone regards as a very important commitment given, but where there is a detraction from it in the terminology of Clause 222. I do not know whether the noble Earl is in a position to make a comment about “unduly” now. I suspect he is not. It is a rather unfair question from me.

[Earl Howe]

We are clear that it is important to ensure that communications service providers are neither advantaged nor disadvantaged by obligations imposed under the Bill. The Government will maintain, therefore, their long-standing policy of making a reasonable contribution to costs, but it is unthinkable that the Government would seek to place any unreasonable financial burdens on a company simply for complying with a warrant. So we are talking about reasonable costs. That is surely right. It is not appropriate for the taxpayer to subsidise unreasonable costs, but as I have said, we have made a commitment to reimburse 100% of reasonable costs incurred by the communications service providers, and that includes both capital and operational costs.

Investigatory Powers Bill

Debate between Baroness Hamwee and Earl Howe

Monday 11th July 2016 Lords Chamber

[Earl Howe]

My Lords, I am grateful to the noble Lord for expressing his expert opinion so clearly. I can undertake only to study carefully what he has said between now and Report. Clearly, the Bill has been drafted by expert hands, but I am the first to say that there is no monopoly of wisdom on the Government’s side, and I am sure we need to taker full account of what he said.

[Baroness Hamwee]

My Lords, one of the things that we are saying is that because the Bill has a mixed heritage, it is perhaps not as clear as it could be and does not have the benefit of the expert work to which my noble friend referred. I am clearly going to have to read very carefully what has been said, but I want to make a few comments now.

First, I am grateful to the noble Viscount, but I do not think what he was saying was quite as the noble Earl put it with regard to the word “may”. We need to come back both to the “may” and the “other considerations” in particular and to the relationship between the subsections. That fact that the list in subsection (4) is not exclusive makes the matter even more difficult.

I obviously do not want to go over all the ground again. With regard to the privacy and civil liberties board, it was of course a construct—a compromise—but my noble friend Lord Strasburger’s point about somebody having the responsibility to make sure that privacy and civil liberties are right at the top, immovably in the agendas that the Government may have, is an important one. I, for one, would welcome something more than was in the Act.

I agree that listing where the duty bites does help clarity and transparency, but I had a difficulty in being completely certain that it bites on everything that I think it should; the filter in Clause 63 was my example. If the filter is part of granting, approving—obviously not—or cancelling an authorisation, that is fine, but it should be clear. I am afraid I am not hugely persuaded by a code of practice, since it is not primary legislation. In fact, I think the Minister said that we should have regard to it. If it provides that these matters are absolute, rather than discretionary, then the codes of practice will not be consistent with the primary legislation, and that will be a bad thing.

I come back to whether this clause has been invented here, or wherever it has been invented. I will offer to supply the hot towels for everybody—I might even provide cake—but this is a provision that would benefit from further discussion. I certainly do not offer not to bring it back on Report—I might if we can get to somewhere that satisfies all of those who are clearly concerned before then—but for the moment, I beg leave to withdraw the amendment.

Immigration Bill

Debate between Baroness Hamwee and Earl Howe

Tuesday 12th April 2016 Lords Chamber

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

My Lords, Amendment 1, tabled by the noble Baroness, Lady Hamwee, would, as she explained, provide that a person disqualified by virtue of their immigration status may apply to the Secretary of State for written confirmation that permission to rent has been or will be granted to them. The amendment would amend the Immigration Act 2014, which introduced the right-to-rent scheme. It would work in conjunction with the existing provision, which states that a person who is otherwise disqualified from renting premises as a result of their immigration status is to be treated as having a right to rent where the Secretary of State has granted them permission to occupy premises under a residential tenancy agreement.

I hope that I can persuade the noble Baroness that the amendment is unnecessary and potentially even a step backwards. The Secretary of State is already able to grant permission to rent to people who are otherwise disqualified from renting. This may include migrants without leave who have sought asylum, families with minor children who are in the family returns process or those who face a genuine obstacle to leaving the UK. A migrant may obtain confirmation that they will be afforded such permission by contacting the Home Office, and all a landlord need do then is to contact the Home Office landlords’ checking service with the migrant’s Home Office reference number to confirm that they may rent to that migrant. Following that process will give the landlord a statutory excuse from any civil penalty under the right-to-rent scheme.

Very importantly, this system allows for a swift process, without the need to require a migrant to make a formal application or for them to await written confirmation through the post that they may rent. Our experience since the right-to-rent scheme was introduced on 1 December 2014 is that this process works well. For those reasons, I invite the noble Baroness to withdraw her amendment.

Incidentally, there is no inconsistency between the FoI response and the letter from my noble friend Lord Bates. As I explained, a migrant may already contact the Home Office in order to establish whether they will be granted permission to rent. Existing arrangements are straightforward and work well. I should also mention that the Home Office is in the process of revising its published guidance in response to concerns raised during previous debates. I have no doubt that it will factor in the points made in this debate as well. Once that is done, the guidance will set out even more clearly how a migrant may contact the Home Office. But I suggest that requiring that they make a formal application and then have to await written confirmation may lead to unnecessary delays and in fact would serve no useful purpose.

[Baroness Hamwee]

My Lords, I wish that I were persuaded. The letter from the noble Lord, Lord Bates, said that migrants,

“may contact the Home Office to establish whether this is the case”.

The clear implication there is that the migrant himself may establish the position, not ask the Home Office to make sure that, if and when a landlord inquires, the landlord is given that information.

Of course, I am aware of the landlord’s statutory excuse. I do not want to be too harsh, but I wonder whether the person in the Home Office who has been drafting this has had any recent experience of trying to rent a property. Not that long ago, on the question of the rollout of the 2014 Act, two or three Members of this House explained very clearly that as landlords they, and indeed most landlords, would want to get on with letting and not have gaps in that letting. The information that I and other noble Lords have received is not that the situation is working well—that is not the position. I am glad to hear that there has been some revision of procedures, but it seems to me that by denying that there is a problem, there is denial around looking at how to solve that problem.

It seems to me that this is not considered a big deal. Perhaps I can simply urge the Minister to urge the Home Office to take this as a very serious concern. If there is a different way of assisting tenants—and my goodness, this House is spending a lot of time talking about the housing crisis at the moment—and making the whole process that much easier, avoiding the concerns about discrimination that we have debated in this context at some length, then I urge him to do that. I am clearly not going to make any progress on this now, but I will not let it go: I will keep asking questions about it.

[Earl Howe]

My Lords, I am happy to give the necessary undertaking to the noble Baroness. Indeed, I am sure she will have gathered from what I said that the whole purpose of the scheme we now have is to have a straightforward and rapid process for people to follow, rather than a more labyrinthine paper-based process. Clearly, the information she has received contradicts, at least in part, the information that I have had about how well the scheme works. I will of course ensure that Home Office officials look at any evidence she has which may cast into doubt the efficient working of the scheme.

[Baroness Hamwee]

My Lords, I think the first piece of evidence will be the case to which the noble Baroness and I have referred. I am grateful for that undertaking and beg leave to withdraw the amendment.