Investigatory Powers Bill

Baroness Jones of Moulsecoomb Excerpts

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

Moved by

[Baroness Jones of Moulsecoomb]

100ZA: Clause 58, page 48, line 9, at end insert—
“( ) An authorisation may be considered necessary on the grounds falling within subsection (7)(b) or (f) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed and it is reasonably believed that the communications data sought will be relevant to the criminal investigation.”

[Baroness Jones of Moulsecoomb (GP)]

My Lords, with this amendment I make a further attempt to introduce into the Bill a requirement on the authorities to demonstrate reasonable suspicion of a serious crime and a nexus between the communications data that are sought and the crime suspected before a targeted surveillance warrant can be authorised.

As I pointed out previously when speaking to Amendment 20, one of the greatest problems with the Bill is the lack of a requirement for reasonable suspicion in order for surveillance powers to be authorised for the purpose of preventing and detecting a crime. At the moment, intrusive powers can be authorised to prevent and detect serious crime, but this general purpose is left wide open to very broad interpretation, and therefore to abuse, without requiring the authorising authority to verify the existence of reasonable suspicion of criminality. A requirement of reasonable suspicion when the purpose of preventing and detecting serious crime is invoked would prevent the potential abusive surveillance of law-abiding citizens, which we have seen in the past, without unduly limiting the legitimate use of surveillance powers.

The threshold of reasonable suspicion has long been an important safeguard for both citizens and law enforcers against the risk of the arbitrary use of police powers. The “necessary and proportionate” standard invokes an important assessment of the extent of the intrusion but does not necessitate a threshold of suspicion. Although would one expect that in practice targets of surveillance would meet this very modest burden of proof, in my view it is a great mistake not to include the threshold of reasonable suspicion in the Bill, and it leaves these powers ripe for abuse. Therefore, I make no apology for returning to this issue once again.

The amendment simply requires, first, a threshold of reasonable suspicion that a serious crime has been planned or committed and, secondly, a factual basis for believing that the targeted communications data will contain information relevant to the criminal investigation. This would reassure the public that intrusive targeted surveillance could be used only where there was reasonable suspicion of a serious crime. To that end, I hope the Government will accept the amendment. I beg to move.

--- Later in debate ---

[Earl Howe]

Indeed, but until we have seen and read what that judgment is, our view is that the Bill is compliant.

In view of the very significant impact that would flow from this amendment, I invite the noble Baroness to withdraw it.

[Baroness Jones of Moulsecoomb]

I thank all noble Lords who have given me some support: it is something that I feel very strongly about. I thank the noble Earl for his full reply. Needless to say, I am not convinced because all of the issues that he talked about are in fact potentially serious crimes, so the threshold would be satisfied.

If the noble Earl had spoken to some of the people who had been blacklisted, for example, and whose lives were basically destroyed because of illegal surveillance and co-operation by the police with various organisations, it is possible that he would have been influenced in the same way that I have been. However, in view of the noble Earl’s answer, I beg leave to withdraw the amendment.

Amendment 100ZA withdrawn.

--- Later in debate ---

[The Lord Bishop of Chester]

My Lords, I was a member of the Joint Committee conducting pre-legislative scrutiny of the Bill, along with the noble Lord, Lord Strasburger—I am not sure whether anyone else in the Chamber was. I remember a discussion which was genuinely open and uncertain about the practicality of this above all. The issue of privacy has been raised very powerfully by the noble Lord, Lord Oates, and others from the Liberal Democrat Benches. We thought at the end of the day that the whole Bill was about reaching a balance, with a degree of compromise over issues of privacy alongside the really quite robust safeguards which are in the Bill, such as the role of the judicial commissioners, as all set out in Clause 86. Our real issue was over practicality and cost. When the Minister comes to respond, it would be helpful if we could have a bit more guidance as to what this is going to cost. The cost will not fall on the companies; it will fall upon the Government, who will have to fund it.

However, we were persuaded that under Clause 84, the retention notice may be more specific than has been suggested in the speech from the Liberal Democrat Benches. It is not necessarily every connection to every website: the provision could be targeted to particular websites, for example, which is all set out in Clause 84. We should also emphasise that these records would not be of the content of what was happening: it would be where you had made contact, not the content of the connection as such. That is an important factor which has not been mentioned in the contributions.

That said, a representative from Denmark came and explained to us why the Danes had given up on this, simply on the grounds of cost and practicality. It is the practicalities that I would like to hear about most from the Minister when he speaks, alongside of course acknowledgement of the points that have been made by others in the debate.

[Baroness Jones of Moulsecoomb]

My Lords, I did not intend to speak on this amendment, which I strongly support, so I will be brief. Even I understand the need to balance civil liberties and national security, but comparing this with stopping a few cars simply does not hold water and is not a comparison that we can make—and, personally, I am totally in favour of stopping cars, so that is not an issue.

It is almost as if the Government went to the intelligence and security services and said, “What do you want? What can you imagine wanting to keep us safe?”, and they came up with a huge list. It is like asking children what they want for Christmas: they want a huge list of things and it is not always good to give them everything they want. In this instance, it is certainly not good to give the intelligence services what they want. Indeed, they do not even want some of what the Government are offering them, so the Government have actually gone one step further and offered them more, which to me is totally counterintuitive.

There is also the issue of practicality. When you have this much information coming through, it is incredibly difficult to pick out the vital points and the important things. This could be counterproductive and make us less safe as a nation than we are already. I feel very strongly about this amendment and deeply regret that there is not more support in the House.

[Lord Rosser]

The effect of this amendment, as has been said, would be to leave out internet connection records from the definition of “relevant communications data” in Clause 84, which covers powers to require the retention of certain data. The Bill has had extensive pre-legislative scrutiny, including by a Joint Committee of both Houses, and we supported it at Third Reading in the Commons subject to, among other things, amendments being made which addressed the issue of access to internet connection records not being used in relation to minor crimes. Our amendment on the definition of “other relevant crime”, which raised the threshold from six months to 12 months, has been accepted by the Government. We will be opposing an amendment that now appears to weaken the effectiveness of the provisions relating to internet connection records, at least under Part 4 of the Bill, specifically Clause 84.