Earl Howe
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Investigatory Powers Bill
Earl Howe ExcerptsTuesday 11th October 2016
(8 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-I(Rev)(a) Amendment for Report, supplementary to the revised marshalled list (PDF, 51KB) - (11 Oct 2016)
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.
“(aa) whether the level of protection to be applied in relation to any obtaining of information by virtue of the warrant, authorisation or notice is higher because of the particular sensitivity of that information,”
“( ) For the purposes of subsection (2)(aa), examples of sensitive information include—(a) items subject to legal privilege,(b) any information identifying or confirming a source of journalistic information, and(c) relevant confidential information within the meaning given by paragraph 2(2) of Schedule 7 (certain information held in confidence and consisting of personal records, journalistic material or communications between Members of Parliament and their constituents).”
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.
Lord Rosser
I will be brief, as the noble Baroness, Lady Hollins, and other noble Lords, including my noble friend Lord Prescott, have set out the case for and reasoning behind the wording of the amendment in very clear terms. Section 40 of the Crime and Courts Act 2013 was part of the cross-party agreement, which included the royal charter, which was signed by the then leaders of the Conservative, Labour and Liberal Democrat parties. As a result, amendments were withdrawn both in the Commons and in this House. Ministers subsequently continued to make explicit commitments in both Houses to bring in Section 40. They have, however, failed to honour that commitment, and have thus not implemented this part of the 2013 Act, in accordance with the wishes of both Houses and indeed, the previously declared intention of the Government. We will support the amendment if the noble Baroness, Lady Hollins, having heard the Government’s response, decides that she still needs to test the opinion of the House.
Earl Howe
My Lords, we discussed this issue in Committee when the noble Baroness tabled an amendment seeking to introduce a cause of action which would allow victims of unlawful interception to bring a civil claim. As she is aware, the Investigatory Powers Bill already contains a criminal offence where a person intercepts, without lawful authority, a communication in the course of its transmission via a public or private telecommunications system or a public postal system.
The cause of action, or tort, provided for in Clause 8, is intended to replicate the safeguard which existed in the Regulation of Investigatory Powers Act 2000. This focuses on circumstances where an individual’s communications are intercepted on a private telecommunications system by a person who has the right to control the operation or use of that private telecommunications system. This was a necessary safeguard to protect individuals in very limited circumstances where their employer may unfairly be intercepting communications on a company’s internal computer system, which is not within the scope of the offence of unlawful interception.
This provision was not intended to provide a route for anyone who believed their communications had been unlawfully intercepted to bring a civil case. As we have seen in recent times with the phone hacking cases brought by a number of individuals against media organisations, the appropriate civil routes of redress already exist, for example, for misuse of private information.
I fully understand that many noble Lords here, particularly those who have been victims of press abuse themselves, are frustrated as to what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report. I want to reassure noble Lords that that is not the case. The Government, as has been said, have implemented the vast majority of Leveson’s recommendations for reforming press regulation. Importantly, they have set up and are funding the Press Recognition Panel, which is currently considering an application for recognition from the self-regulator IMPRESS.
The exemplary damages provisions have been commenced in line with the date set out in the 2013 Act. However, it is important to make clear to the House that no specific date was set for the commencement of the Section 40 costs provisions. Notwithstanding that, the Government continue to look at this issue closely. Indeed, to better understand the issue, my right honourable friend the Secretary of State for Culture, Media and Sport and the Minister for Digital and Culture met Hacked Off and victims of press abuse as their first priority. DCMS officials met Hacked Off at official level again only last week. So this is something that the Government are actively considering. I suggest to the House that it is not unreasonable for Ministers who are new in post to take time to understand the issues at play. The position is that, for the time being, Section 40 remains under consideration.
We should also bear in mind that no recognised regulator is yet in place, although I realise that that could change on 25 October when the Press Regulation Panel rule on IMPRESS’s application. Regardless of the panel’s decision, it is true to say that the press landscape has undergone a huge amount of change over the last four years and the Government need to be sensitive to that. A crucial part of Section 40, for example, is around ensuring both sides have access to low-cost arbitration as an alternative to expensive litigation. The arbitration scheme run by IMPRESS is relatively new, while IPSO is currently trialling an arbitration scheme to better understand how it could work effectively. Given the importance of arbitration to making Section 40 operate effectively, it would also be useful to see how both IMPRESS’s arbitration scheme and IPSO’s arbitration pilot work in practice.
I return to the specifics of the amendments which the noble Baroness has tabled.
Lord Prescott
When Secretary of State Whittingdale went to the editors’ conference and told them, “We are minded not to implement this”, was that government policy or his policy—and is the Minister’s policy any different?
Lord Rooker
That being said, can I follow up my noble friend’s question? The Minister listed groups that have asked the Government to implement Section 40. Is there an individual or group that has requested the new Government not to implement it?
Earl Howe
I am not aware of that, but I can seek advice and let the noble Lord know when I have received it.
I do not believe that the amendments that the noble Baroness has tabled will achieve the outcome that she seeks. This clause deals with the interception of private telecommunication systems, such as a company’s internal email or telephone system. That is not, I think, what the noble Baroness is driving at, so I do not believe the amendment would be capable of being used as she intends.
That reflects a broader point that these issues should not really be dealt with in this Bill. I am all too well aware that many people suffered terribly at the hands of unscrupulous members of the media, and I have a great deal of sympathy with the noble Baroness, whose family, I know, suffered unspeakable wrongdoing by people who called themselves journalists. While we all agree that the outcome of Leveson and the proper regulation of the media are clearly important matters, the powers for law enforcement and the security and intelligence agencies provided in this Bill are vitally important, too. It is not right to try to deal with serious but largely unrelated matters in a Bill of this vital national interest.
Lord Oates (LD)
Is the Minister aware that very few people in this House think that this is the ideal way in which to deal with the issue? They think that the ideal way in which to deal with it is to implement Section 40. Is he also aware that, when he says that the Government have implemented many of the aspects of Leveson, the implementation of Section 40 was regarded as absolutely critical to the system working? It was not put in the Bill at the Government’s discretion; it was put in and regarded at the time by all the party leaders, who gave solemn undertakings to the victims, as absolutely critical.
Earl Howe
I accept the point that the noble Lord made about the agreement made in 2013 on a cross-party basis. If the noble Baroness chooses to withdraw the amendment, the clear message given out by the debate will not be lost on my right honourable friend the Secretary of State as he considers these matters.
What we have here is an attempt to insert a clause into a Bill that just happens to be passing to force an issue that has no direct bearing on the Bill in question, and I question whether that is an appropriate thing to do. Mechanisms are provided for in both Houses of Parliament to debate subjects of particular interest to parliamentarians, and perhaps that would be a better route by which to raise these matters.
I hope that I can reassure the noble Baroness that the Government continue to look closely at the cost provisions in the Crime and Courts Act, and respectfully urge her to withdraw the amendment and allow the Government to consider the issue thoroughly.
“and section 23(5) does not apply in relation to the refusal to approve the decision.”
Earl Howe
My Lords, I shall also speak to the other government amendments grouped here. These amendments relate to warrants: their scope, authorisation process and modification. I shall begin by discussing a number of amendments, many of which are minor and technical in nature.
Amendments 32 to 34 provide that a targeted interception warrant, targeted examination warrant or mutual assistance warrant authorising or requiring the interception or selection for examination of secondary data must specify the address, numbers, apparatus or other factors or combination of factors that are to be used for identifying the communications. This will bring the requirements for a warrant authorising the obtaining of secondary data into line with those warrants seeking to obtain communications. By “secondary data” I mean systems data attached to or logically associated with the communication that is capable of being separated from the remainder of the communication and which, if separated, would not reveal the meaning of the communication.
On Amendment 35, Clause 17 states that a warrant may relate to a person, organisation or set of premises, and Clause 29 goes on to set out requirements that must be met by warrants. Clause 29 already caters for the circumstances surrounding warrants intended for communications from or intended for any person, and for communications originating on or intended for transmission to any premises named or described in the warrant. This amendment makes a small change to include communications relating to an organisation within Clause 29.
Amendments 36, 261 and 272 are technical amendments that simply clarify that the communications described in a targeted interception warrant can include communications sent between anything owned, controlled or operated by the person or organisation specified in the warrant, including communications that are not sent by, or intended for, a person. This is nothing new and simply makes explicit the position in existing law. The amendments also clarify that any “premises” described in such a warrant include but are not limited to,
“land, movable structure, vehicle, vessel, aircraft or hovercraft”.
I thought it would assist the House if I gave an example of where such communications are crucial: gathering intelligence on the technical characteristics of military systems. This activity is vital to understanding, reducing and countering the threat to our interests around the world, including threats from foreign weapon systems in operational and strategic theatres, both directly through the understanding of the threat and through longer-term countermeasure development by the Ministry of Defence. It reduces the threat to our deployed and strategic forces—on the ground, at sea and in the air—and it is essential for keeping our Armed Forces safe, ensuring that they can operate effectively, and for providing options to protect our national interests.
As I speak, the RAF is deployed on counter-Daesh operations in the Middle East. Intelligence garnered from such signals or communications has played an important role in getting the RAF there and keeping it safe, in both the short and long term. The specifications that our aircraft and their on-board offensive and defensive systems have been built to were in large part shaped by the historic understanding of adversaries’ weapons capabilities. The long-term analysis of these data allows us to develop understanding of the way our adversaries operate, and assists in training and equipping our Armed Forces. It also informs deployment decisions, including risk assessment, force size and shape, and affordability. The way the world has changed over the past decade makes it more important than ever that we maintain this broad situational awareness so that, if our Armed Forces are required to provide support during a future global crisis, they are prepared and can be protected.
Given the global nature of these communications, the international nature of the arms trade and the inherent unpredictability of global instability, most warrants of this nature will relate to thematic subjects under Clause 17(2) such that relevant systems can be targeted wherever they are in the world. For example, if it is necessary to issue a warrant to obtain data emitted by military ships controlled by states posing a threat to the UK, the warrant must provide for data to be obtained from those ships irrespective of their location. However, as noble Lords will appreciate, the main purpose of this activity is to obtain information from and about systems, such as missile systems, ships, radar and aircraft. It is not about obtaining the private communications of individual people, whether in the UK or overseas. Nevertheless, the obtaining of the data and their subsequent handling, retention, use and destruction would always be subject to all the safeguards required by the Bill, as for any other targeted interception warrant. This includes the double lock of Secretary of State and judicial commissioner approval.
The activity that I have talked about here is crucial to our national security. It is activity that is already undertaken under existing law and it has always been the case that the Bill was intended to cater for it. These amendments simply make it absolutely clear that that is the case.
Amendment 39 is a minor amendment to correct the position whereby a competent authority outside the UK, such as a foreign law enforcement agency operating under a mutual assistance warrant, could make major or minor modifications to a warrant in an urgent case. It is not our intention that a competent authority outside the UK should be able to make major or minor modifications to an urgent mutual assistance warrant. Therefore, this amendment simply removes that ability for a competent authority outside the United Kingdom to make major or minor modifications to a mutual assistance warrant in an urgent case.
Similarly, Amendment 51 is a minor amendment which makes the definition of “interception subject” in Clause 38 simpler and clearer. There is no change in the meaning.
I turn to a series of amendments that seek to amend the clauses that relate to the approval of major modifications made in urgent cases. Amendments 49, 85, 88, 182, 199, 207 and 233 will reduce the time period within which a judicial commissioner must decide whether or not to approve the modification and notify the issuing authority of this decision from five working days to three. We have already debated equivalent amendments to the targeted provisions in the Bill. We heard during our previous debates how important it is for the security and intelligence agencies to have the operational agility to respond at speed to events in their efforts to keep us all safe. These provisions reduce the time available to judicial commissioners to consider whether to approve a major modification in an urgent case, bringing the period into line with that for the approval of urgent warrants in the Bill. These amendments act as a further safeguard in so far as they limit the time that a modification is in force without being subject to the full judicial commissioner double lock, while still allowing them sufficient time to undertake their deliberations.
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.
“Confidential journalistic material
(1) This section applies if—(a) an application is made by or on behalf of an intercepting authority for a warrant under this Chapter, and(b) the purpose, or one of the purposes, of the warrant is—(i) in the case of a targeted interception warrant or mutual assistance warrant, to authorise or require the interception of communications which the intercepting authority believes will be communications containing confidential journalistic material, or(ii) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the intercepting authority believes is confidential journalistic material.(2) The application must contain a statement that the purpose, or one of the purposes, of the warrant is—(a) in the case of a targeted interception warrant or mutual assistance warrant, to authorise or require the interception of communications which the intercepting authority believes will be communications containing confidential journalistic material, or(b) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the intercepting authority believes is confidential journalistic material.(3) The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 51 or (as the case may be) section 141 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications containing confidential journalistic material.(4) For the meanings of “journalistic material” and “confidential journalistic material”, see section (General definitions: “journalistic material” etc.).”
Earl Howe
My Lords, in moving Amendment 30, I shall speak also to the other government amendments grouped with it. We come to the safeguards associated with confidential journalistic material and sources of journalistic information, which have been the subject of significant debate during the passage of the Bill. This package of amendments protects the fundamental role that journalism plays in a healthy democracy. While it is right that the Bill provides for the investigation of individuals where they are suspected of serious illegality or wrongdoing, whatever their chosen profession, it is also right that particularly sensitive professions are afforded specific additional protections.
In limited circumstances, it may be necessary to use the powers provided in this Bill for the necessary and proportionate investigation of a journalist—for example, where they are suspected of serious illegality or wrongdoing or where there is an immediate threat to life. In such circumstances, the Bill and the associated codes of practice already contain significant protections for journalists and their sources, recognising the strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously. So it already places into primary legislation for the first time the requirement for all public authorities to obtain judicial approval for an authorisation to acquire communications data to identify or confirm a journalistic source. We responded to concerns raised in the Commons by clearly setting out in the Bill that the judicial commissioner, a current or former High Court judge, must first consider the public interest in protecting a source of journalistic information and then be satisfied that there is another, overriding public interest before approving such an application.
On top of that, we went further and introduced Clause 2, the overarching privacy clause, which makes it explicit that public authorities using any power in the Bill must have regard to a number of matters, including whether what is sought to be achieved by an authorisation may reasonably be achieved by other, less intrusive means and the public interest in the protection of privacy. Public authorities would, of course, also be subject to the requirements of the Human Rights Act and all the relevant rights and freedoms that it provides for. Of course, all applications to acquire material must be authorised by a relevant authority and approved by a judicial commissioner. The accompanying draft codes of practice require the Secretary of State, or law enforcement chief for law enforcement use of equipment interference, to apply particular consideration in cases where the subject of the warrant might reasonably assume a high degree of privacy, or where confidential information is involved.
Finally, statutory oversight of the use of investigatory powers, whether in relation to journalists or not, is provided through the creation of the Investigatory Powers Commissioner. Further to this comprehensive oversight regime, the Bill creates a number of offences that apply to the public authorities using the powers to sit alongside existing relevant offences in other legislation. This includes a specific offence of unlawfully obtaining communications data, which will sit alongside the offence of misconduct in a public office in common law, to ensure that, where a public authority knowingly or recklessly acquires communications data without lawful authority, appropriate penalties are available.
My noble and learned friend Lord Keen has already spoken about the government amendment requiring the Investigatory Powers Commissioner to include in his annual report information relating to the operation of particular safeguards, such as those for legally privileged material. I want to make it clear that this requirement also applies to those safeguards protecting confidential journalistic material and sources of journalistic information. It is also important to remember that the Investigatory Powers Commissioner will be able to call on whatever expertise he or she sees fit, and will be provided with sufficient resources to do so. This may be technical or communications expertise or, indeed, professional expertise, such as that of media advisers or lawyers.
We have been clear that the commissioner will lead an outward-facing organisation, and we consider that engagement with professional bodies, such as media representative groups, on how the use of a particular power affects their members is exactly the sort of thing the commissioner and their team should be doing. While we do not think that it would be appropriate to mandate this through legislation, it will form part of the role for the commissioner. These further new amendments will strengthen the safeguards in the Bill even further to ensure that the vital public interest of freedom of expression is protected, while still allowing those who are charged with keeping us safe to continue their vital work.
Amendments 30 and 75 protect the key principle that individuals who provide information to journalists should have an expectation of privacy. The Government accept that it is important that confidential journalistic material is handled with the sensitivity that it deserves. So where a relevant authority applies for a warrant where the purpose, or one of the purposes, is to authorise or require the obtaining of confidential journalistic material, the amendment would require the application to contain a statement confirming that this is the purpose, or one of the purposes.
The same requirement would apply in relation to a targeted examination warrant that seeks to authorise the selection for examination of such confidential journalistic material acquired in bulk. This means that the Secretary of State or law enforcement chief and judicial commissioner will have to be fully aware that they are authorising the obtaining of confidential journalistic material when they come to consider a warrant. The Government are seeking to protect legitimate journalism, while ensuring that those who wish to do us harm cannot hide behind spurious claims of journalism. For this reason, Amendment 268 makes it clear that material acquired or created to further a criminal purpose is not considered journalistic material in the context of the Bill. That seeks to avoid those such as the media wing of Daesh attracting a safeguard intended for legitimate journalists.
In addition to the requirement to clearly state in the application whether the purpose, or one of the purposes, is to obtain confidential journalistic material, the person to whom the warrant application is addressed must also be satisfied that there are specific arrangements in place for the handling, retention, use and destruction of communications containing such confidential journalistic material.
I turn to the amendments which protect sources of journalistic information. A free press cannot operate without journalists, and journalists cannot operate without sources. That is why the Government have focused protections on journalists’ sources and the important public interest in protecting the confidentiality of sources of journalistic information. Amendments 31 and 76 provide further protection by making clear that when a relevant authority seeks a warrant to identify or confirm a source of journalistic information, the application must contain a statement to that effect. This will mean that the Secretary of State or law enforcement chief and judicial commissioner will be fully aware of the intention to identify or confirm a source when they are considering the necessity and proportionality of the warrant. Again, the person to whom the warrant application is addressed must also be satisfied that there are specific arrangements in place for the handling, retention, use and destruction of communications that identify sources of journalistic information.
There are a number of consequential amendments which relate to modification of a warrant. These amendments make it clear that, when modifying a warrant when the purpose is to obtain confidential journalistic material, the same factors must be considered as would be the case in an application to obtain confidential journalistic material.
Amendments 53, 90, 194 and 217 will ensure that, where confidential journalistic material is obtained by a public authority which intends to retain it, the Investigatory Powers Commissioner must be notified as soon as is reasonably practicable. This applies when the material is obtained through interception or equipment interference through a targeted warrant and when it is selected for examination having been collected in bulk. This is an important safeguard. It ensures that the commissioner is fully aware of the confidential material held by the agencies. It assists in his oversight of the particular handling arrangements that must be in place when this type of material is retained by the agencies.
I turn to the amendments in relation to bulk provisions. Amendments 194 and 217 make it clear that, where confidential journalistic material is obtained by a public authority which intends to retain it, the Investigatory Powers Commissioner must be notified as soon as is reasonably practicable. This applies when the material is obtained through interception or equipment interference through a targeted warrant and when it is selected for examination having been collected in bulk. It ensures that the commissioner is fully aware of the confidential material held by the agencies and it assists in his oversight of the particular handling arrangements that must be in place when this type of material is retained by the agencies. There are also a number of consequential amendments on this which provide for the definition of a journalistic source to apply to the Bill as a whole rather than solely to Part 3, as previously drafted.
I hope that what I have said by way of explanation of these amendments demonstrates to the House that the Government have listened to the concerns raised in Committee by a number of your Lordships and to representations from journalists’ organisations and that we have responded in a constructive and helpful way. I beg to move.
Viscount Colville of Culross (CB)
My Lords, I thank the Minister for bringing forward this group of amendments, which will go a very long way to protecting the important relationship between the best journalists and their sources. As a journalist, I know how increasingly difficult it is to nurture a relationship with a whistleblower or an anonymous source who is prepared to reveal confidential information in the public interest. The Bill had been in danger of damaging that bond of trust, as I said in my speech at Second Reading. However, Amendment 30 will now place this relationship at the forefront of the judicial commissioners’ minds. During the passage of the Bill there have been questions about the definition of journalism, but these new amendments will give commissioners the powers to decide whether it is in the public interest to protect a particular source of journalism information.
I have also been concerned that targeted interception clauses would have made journalists covering demonstrations greater targets for those wanting to cause harm. The Bill would have opened the journalists to the threat of being seen as agents of the forces of law and order. This would have compromised their independence and ability to report the incident, not to mention putting them in harm’s way. However, Amendment 75 assuages my fear. The noble Earl and the Bill team have gone far to strengthen these safeguards for journalistic material in the various powers considered, but the new codes of practice will strengthen them even further. My only reservation is that the Bill does nothing to allow notifying the lawyers of reputable news organisations to alert them that a warrant to carry out surveillance on their journalists has been issued. This would have given them a chance to explain the importance of maintaining the confidentiality of a source when a warrant was asked for. However, I trust that the changes brought forward in this group of amendments will allow the commissioner to protect those sources of journalism. I know that the noble Earl and the Bill team have worked long and hard to come up with these amendments and I thank them.
Baroness Hayter of Kentish Town
My Lords, I hope that my noble friend Lord Rooker has not ended the Minister’s political career. However, I think we all can say that when we come here our political careers are behind us. I join the noble Viscount, Lord Colville, the noble Lord, Lord Black, and others in thanking the Ministers and their team for the significant changes that have been made. I will not go through all of them, but the Government’s adding in Amendment 11 a reference to,
“information identifying or confirming a source of journalistic information”,
needing extra protection is very welcome, in addition to the other overriding requirement of there being no other way of getting the information.
As has been mentioned, government Amendments 30 and 31 insert special procedures for journalistic material and, perhaps of even more concern to journalists, journalists’ sources. As has just been said, the NUJ in particular wants other changes to be introduced but the idea of prior notice for covert investigation is in itself a contradiction too far. We are, however, sympathetic to the essence of the journalists’ approach—that is, their desire to protect not simply their members but whistleblowing members of the public through whom misdeeds often come to light. However, there will be occasions when terrorists or others who wish us harm will have been in touch with a journalist and the sole indication of that person’s whereabouts might exist on a journalist’s phone. Unless we are absolutely sure that we would never in any circumstances want those who protect us to be able to access that information, we need the warrants and the powers in the Bill. We hope very much that the safeguards provided will keep those exceptions to a minimum—I think that the word used was “rare”—and we hope that the IPC, in reviewing what happens, will always bear in mind the cost to all of us if fears of retribution deter good whistleblowers from getting misdeeds into the public domain. However, those are in a way fairly small instances. I commend to the House the changes that have been made.
Earl Howe
My Lords, I very much appreciate the noble Lord, Lord West, alerting the House to the achievement of my distinguished ancestor, Admiral Earl Howe, in relieving the siege of Gibraltar, to which he referred for the rest of his life as one of his greatest accomplishments. Glad as I am that this package of amendments has received the approval of so many of your Lordships, I cannot claim that it falls into quite the same bracket as the relief of Gibraltar. I am obviously gratified that it has met with the House’s approval.
For the sake of completeness, I should add that we have also undertaken an extensive update of the section relating to journalists and their sources in the existing draft communications data code of practice, providing additional statutory guidance to police forces about handling requests for communications data relating to journalists. This revised version of the code has been published in time for Report, so I refer noble Lords to it.
“Sources of journalistic information
(1) This section applies if—(a) an application is made by or on behalf of an intercepting authority for a warrant under this Chapter, and(b) the purpose, or one of the purposes, of the warrant is to identify or confirm a source of journalistic information.(For the meaning of “source of journalistic information”, see section 239(1).)(2) The application must contain a statement that the purpose, or one of the purposes, of the warrant is to identify or confirm a source of journalistic information.(3) The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 51 or (as the case may be) section 141 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications that identify sources of journalistic information.”
(i) ”
Earl Howe
My Lords, I am grateful to both the noble Lord, Lord Rosser, and the noble Lord, Lord Paddick, for the way they introduced this amendment. Of course, its context, as the House will be aware, is the position of this country vis-à-vis the United States. I welcome the opportunity to respond to the amendment because it provides me with a chance to update the House on the progress of the proposed bilateral agreement between the United Kingdom and the United States on the issue of access to data across jurisdictions.
The UK and United States Governments have been considering a framework under which communications service providers based in one country could disclose data directly to the other for serious criminal and counterterrorism investigations when required to by a valid warrant or order, without facing a conflict of law. We need to address the situation—highlighted by Sir Nigel Sheinwald, David Anderson, and indeed some US-based companies themselves—where the content of communications between UK nationals, in the UK or in third countries, who are planning or committing crime in the UK, or others who pose a direct threat to the UK both here and abroad, can be beyond the reach of UK law enforcement simply because the data that relate to their communications happens to be stored in the United States.
I am pleased to say that in July 2016 the US Government sent a legislative proposal to Congress that, if passed, would pave the way for a bilateral agreement between the UK and US Governments. The legislation and agreement would help ensure that US-based communications service providers were able to respond to lawful orders from the UK by removing any perceived conflict of law that may previously have prevented co-operation. It would include strong safeguards and so maintain rigorous privacy protections while providing a means for UK agencies to make targeted requests for data relating to serious criminality. This type of agreement would be good for business, which requires greater certainty in the face of any conflict of laws; good for the public, because it would increase levels of transparency and oversight, while also ensuring that they are protected from key threats; and good for the internet, because it would avoid the challenges posed by data localisation and the balkanisation of the web.
We hope that such an agreement can be in place as soon as possible. However, any timetable will of course depend on the changes required to the relevant US legislation. We hope that these can be agreed quickly. Clearly, it would not be right to specify something that does not yet exist as a primary route in the Bill. However, I can reassure the House that, in practice, of course the intention is that such an agreement between the United Kingdom and the United States would be the primary route through which UK agencies access data from US-based communications service providers where it is within the scope of the agreement.
We have always sought to work with companies so that they are able to meet their obligations under UK law. This agreement will help to facilitate exactly that co-operation—so the amendment is not necessary. It is worth repeating what the Prime Minister said in March when she was Home Secretary: any company co-operating with its obligations through an international agreement will of course not be subject to enforcement action through the courts. I hope that these remarks are helpful, and for the reasons given I invite the noble Lord to withdraw the amendment.
Lord Rosser
I thank the Minister for his reply and for the update on the discussions that are taking place towards an agreement that I hope will resolve some of the current difficulties. I am quite sure that the Minister’s words and the information he has given will be read with interest, not only within this House but outside it. I thank him for his reply and beg leave to withdraw the amendment.
“( ) Where—(a) a communication which has been intercepted in accordance with a targeted interception warrant or mutual assistance warrant is retained, following its examination, for purposes other than the destruction of the communication, and(b) it is a communication that contains confidential journalistic material or identifies a source of journalistic information,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.”
“Additional safeguards for items subject to legal privilege
(1) This section applies where an item subject to legal privilege which has been intercepted in accordance with a targeted interception warrant or mutual assistance warrant is retained, following its examination, for purposes other than the destruction of the item.(2) The person to whom the warrant is addressed must inform the Investigatory Powers Commissioner of the retention of the item as soon as is reasonably practicable.(3) The Investigatory Powers Commissioner may—(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(4) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (3), and (b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(5) Each of the following is an “affected party” for the purposes of subsection (4)—(a) the person who decided to issue the warrant;(b) the person to whom the warrant is or was addressed.”
“( ) In this paragraph “relevant party”, in relation to any proceedings of an inquiry, means—(a) any person making a disclosure to the panel of the inquiry, or to a person appointed as legal adviser to the inquiry, in accordance with paragraph 22(1);(b) any person giving evidence to the inquiry in circumstances where, in the absence of sub-paragraph (1), the prohibition imposed by section 53(1) would be breached;(c) any person whose conduct is the interception-related conduct (within the meaning of section 53) to which the disclosure or evidence relates (whether or not that conduct has in fact occurred);(d) any other person to whom the subject-matter of the disclosure or evidence has been lawfully disclosed in accordance with section 55.( ) Any reference in this paragraph to a person appointed as legal adviser to an inquiry is to be read in accordance with paragraph 22(3).”
“( ) But subsection (2)(b) does not apply in the case of a mutual assistance warrant that is or was addressed to a person falling within section 18(1)(h) (competent authorities of overseas countries or territories).”
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”
“and section 103(5) does not apply in relation to the refusal to approve the decision.”
“Confidential journalistic material
(1) This section applies if an application is made for a warrant under this Part and the purpose, or one of the purposes, of the warrant—(a) in the case of a targeted equipment interference warrant, to authorise or require interference with equipment for the purpose of obtaining communications or other items of information which the applicant for the warrant believes will be communications or other items of information containing confidential journalistic material, or(b) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the applicant for the warrant believes is confidential journalistic material.(2) The application must contain a statement that the purpose, or one of the purposes, of the warrant is—(a) in the case of a targeted equipment interference warrant, to authorise or require interference with equipment for the purpose of obtaining communications or other items of information which the applicant for the warrant believes will be communications or other items of information containing confidential journalistic material, or(b) in the case of a targeted examination warrant, to authorise the selection for examination of journalistic material which the applicant for the warrant believes is confidential journalistic material.(3) The person to whom the application is made may issue the warrant only if the person considers that the arrangements made for the purposes of section 122 or (as the case may be) section 177 (safeguards relating to retention and disclosure of material) include specific arrangements for the handling, retention, use and destruction of communications or other items of information containing confidential journalistic material.(4) For the meanings of “journalistic material” and “confidential journalistic material”, see section (General definitions: “journalistic material” etc.).”
“( ) Where—(a) material obtained under a targeted equipment interference warrant is retained, following its examination, for purposes other than the destruction of the material, and (b) it is material that contains confidential journalistic material or identifies a source of journalistic material,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.”
“Additional safeguards for items subject to legal privilege
(1) This section applies where an item subject to legal privilege is retained for purposes other than the destruction of the item following its examination under a warrant issued under this Part.(2) The person to whom the warrant is addressed must inform the Investigatory Powers Commissioner of the retention of the item as soon as is reasonably practicable.(3) The Investigatory Powers Commissioner may—(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(4) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (3), and(b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(5) Each of the following is an “affected party” for the purposes of subsection (4)—(a) the issuing authority (within the meaning given by section 122(11));(b) the person to whom the warrant is or was addressed.”
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”
Earl Howe
Main Page: Earl Howe (Conservative - Excepted Hereditary)Department Debates - View all Earl Howe's debates with the Ministry of Defence
Investigatory Powers Bill
Earl Howe ExcerptsMonday 17th October 2016
(8 years ago)
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(i) to obtain the data (if not already in possession of it), and(ii) to disclose the data (whether already in the person’s possession or subsequently obtained by that person)”
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I shall speak also to the other government amendments with which this is grouped.
This group contains the government amendments in relation to the acquisition of communications data under Part 3 of the Bill. Starting with Amendments 96 to 100, a designated senior officer may believe that a communications service provider has the communications data he or she requires and grants an authorisation or issues a notice to that provider for disclosure of the data. However, in such a case the provider may not actually have the data but is able to obtain it. The Bill already provides for an authorisation or notice in respect of such data. These amendments simply make it clear that a second authorisation or notice for the same data and for the same purposes is not required in these circumstances. I trust the House will agree that these are sensible amendments, ensuring that neither the public authority nor the communications service provider is unnecessarily burdened.
Amendments 101 to 103 update Schedule 4 in two ways. The first is through minor and technical amendments to the description of the minimum rank for authorising communications data requests within the Competition and Markets Authority and the Police Investigations and Review Commissioner in Scotland. These amendments correct an error and reflect an organisational restructure in the respective organisations. Secondly, they add the Department for Communities in Northern Ireland to the list of public authorities which may acquire communications data for the purpose of preventing or detecting crime or preventing disorder. Communications data are of course a vital tool in investigations to detect, prosecute and prevent benefit fraud, providing vital investigative leads that would not otherwise come to light. These amendments ensure that the Department for Communities in Northern Ireland has the same powers as its English counterpart, the Department for Work and Pensions. They will allow it to continue to investigate crimes, such as organised attacks on the benefits system.
On Amendments 104 to 106 and 109 to 114, the collaboration agreement provisions in this part of the Bill are intended to ensure that, where necessary and appropriate, one public authority can make use of another public authority’s authorising and single point of contact expertise. They will bolster the strength of the regime by allowing for the sharing and use of best practice and experience. These minor and technical amendments will ensure that public authorities can enter into collaboration agreements and benefit from them without any unintended consequences. For example, they would ensure that two public authorities could collaborate with each other, even though the purposes for which they can each acquire communications data are different. They would also ensure that restrictions, such as the requirement for local authorities to seek magistrate approval for their requests for communications data, operate properly under collaboration agreements.
Similarly, the amendments make clear that single points of contact in a public authority can themselves obtain the communications data from communications service providers on behalf of the authorising officer in the collaborating public authority, as well as provide their advisory function. The single point of contact already performs this role in respect of requests authorised within the same public authority, and this amendment was needed to ensure that nothing in the collaboration provisions casts doubt on their ability to perform that role. I hope the House will agree these amendments to improve the regime.
Finally, on Amendment 259, it has always been the case under RIPA that a public authority can request data that may reasonably be obtained by a communications service provider as well as data which it holds. This fact has been reflected in the telecommunication definitions in the Bill, which make clear that communications data includes data which are, are to be or are capable of being held or obtained by a telecommunications operator. This amendment does no more than ensure that the definition of communications data in the postal context is consistent in this respect. I beg to move.
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.
Lord Rosser
The Minister appears to be saying that the Government’s position is the same as ours, and that you cannot express a view on whether the law as it stands, as reflected in the Bill, meets the judgment of the European Court of Justice until we have seen and read what that judgment is.
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.
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.
Earl Howe
My Lords, I feel that I have to begin by saying to the noble Lord, Lord Paddick, that he has got this one wrong—indeed, very wrong. I am grateful to the noble Lord, Lord Carlile, the noble Viscount, Lord Brookeborough, my noble friend Lady Harding and the noble Lord, Lord Rosser, for the contributions that they have made.
The amendments seek to remove Clauses 64, 65 and 66 from the Bill, which provide that the Secretary of State may establish, maintain and operate filtering arrangements for communications data—colloquially referred to as the “request filter”—and detail the appropriate safeguards and restrictions around its use. Throughout the passage of the Bill we have repeatedly highlighted the many misconceptions and misrepresentations around the filtering arrangements, and we have demonstrated how the provisions in fact provide an important safeguard in the acquisition of communications data. It is therefore perplexing that the noble Lord, Lord Paddick, has given notice that he remains opposed to the clauses providing for the filtering arrangements to stand part of the Bill. It may therefore be helpful if I set out again what the filtering arrangements will actually do and not do.
Public authorities currently need to receive all the communications data disclosed by communications service providers in response to specific requests. In certain circumstances this amounts to more data—sometimes much more data—than are relevant to their investigation, and they will then need to determine which specific pieces of communications data are relevant. Perhaps I could illustrate with an example. The police may need to make a complex query, such as asking multiple communications service providers for data to identify an unknown person who is suspected of having committed a crime, such as armed robbery, at three different places at different times. Currently, public authorities might approach communications service providers for location data to identify all the mobile phones used in those three locations at the relevant times to determine whether a particular phone and a particular individual is linked to the three offences. This means that the public authority may acquire a significant amount of data relating to people who are not of interest but who just happened to be in the location at the time of the robbery.
The significance of the request filter is that, when a police force makes such a request, they will see only the data that they need to. Any irrelevant data about people who are not suspects will be deleted and not made available to the public authority. That is why I maintain that the filter acts as a vital safeguard, protecting privacy by ensuring that the police see only the data they need to. These amendments would remove that important safeguard—so it is perplexing, as I say, that the noble Lord wishes to do this.
To further reassure the House, I remind noble Lords of what the Joint Scrutiny Committee on the draft Bill stated about the filtering arrangements. It stated:
“We welcome the Government’s proposal to build and operate a Request Filter to reduce the amount of potentially intrusive data that is made available to applicants”.
The Joint Committee believed that the requirement upon law enforcement to state the operational purpose of accessing data through the filter and the oversight of the Investigatory Powers Commissioner will ensure the appropriate use of the filter.
The noble Lord, Lord Paddick, said that the Bill provided for unfettered access to private and confidential information. But access is not unfettered—and nor does the Bill permit fishing expeditions, as the noble Lord, Lord Carlile, rightly emphasised. The filtering arrangements can operate only in response to a specific, necessary and proportionate authorisation for the acquisition of communications data. That request must already have gone through all the existing communications data safeguards, such as authorisation by a designated senior officer of a rank specified by Parliament, who must be independent of the investigation.
I noted with some dismay the aspersions cast by the noble Lord on the likely integrity of those individuals actually retrieving the data—including, to my surprise, the integrity of the police. I am pretty shocked by the language that he used. The noble Lord also described the filter as a “database”. A database has to contain data. The filter will not hold any communications data. Once a request has been processed by the filter, any data—that is to say, all data—will be discarded. I hope that that does clear some of the fog.
The request filter will act as an important safeguard. It will ensure that police officers and others will see only the information they really need to in those cases where it is used. Accordingly, I respectfully request that the noble Lord, Lord Paddick, withdraws his amendment.
Lord Paddick
I thank the Minister for his remarks, and other noble Lords who have contributed. I acknowledge the great experience of my noble friend Lord Carlile of Berriew both as a lawyer and as a former Independent Reviewer of Terrorism Legislation. However, it is clearly untrue for him to say that, in his judgment, excluding the request filter from the Bill would reduce the capacity of the authorities to investigate cases. The request filter does not exist at the moment, so it cannot possibly reduce the capacity. It may restrict the capacity of the agencies in the future, but it will certainly not reduce it, because the authorities do not have a request filter at the moment. The “monster” that I alluded to is nothing other than the mechanism—the request filter—that these clauses and this amendment are all about.
My noble friend described two murder cases where convictions could not have happened were it not for the sort of data that we are talking about here. Those two convictions were obtained in the absence of a request filter, because the filter does not exist. So it is clearly nonsense for my noble friend to say that excluding the request filter from the Bill was likely to have impacted on convictions that relied on something that does not even exist at the moment.
I acknowledge the experience of the noble Viscount, Lord Brookeborough, in Northern Ireland. As the Minister said, this is not a database. It is not intelligence information that is gathered and stored. It is a mechanism—a piece of kit, if you will—that reaches out into databases held by private companies, such as the internet service provider led by the noble Baroness, Lady Harding of Winscombe, retrieves data and brings it back. As the noble Earl said, it is not about a real database but a virtual or federated one. In other words, the tool will effectively act as a database rather than being an actual one. I am sorry that, in the number of times that I have used this expression—at Second Reading, in Committee and now on Report—I have not been able to get my message across about the difference between a virtual database and a real one. But I think that it is time I stopped flogging that horse.
The noble Lord, Lord Rosser, is reassured that Clause 2, the overarching privacy clause, applies to every power in the Bill. This is not a power: it is a piece of kit, a search engine. The Government have said nothing in their response to this amendment to reassure us that Clause 2 applies to this, because it is not actually a power. The Minister used the example which I spoke to, almost exactly, when I moved the amendment. To use his word, it is “perplexing” that the noble Earl did not hear my objections to that as a good example.
The unfettered access that I am talking about is not unfettered access to data by the police and the security services, and I never suggested that it was—but there will be unfettered access by those who operate the request filter because the request filter will have direct access to the databases operated by the communications providers. So I am not saying that there would be unfettered access to data by the police and security services; what I am saying is that government officials, or those acting on behalf of the Secretary of State, would have unfettered access to these databases were the request filter to come into existence. So I, too, am perplexed that the Government have not responded positively to this amendment and I wish to test the opinion of the House.
“( ) Nothing in this section prevents a person acting as a single point of contact from also applying for, or being granted, an authorisation or, in the case of a designated senior officer, granting an authorisation.”
“( ) this Part has effect as if the designated senior officer of the supplying authority had the power to grant an authorisation to officers of the subscribing authority, and had other functions in relation to the authorisation, which were the same as (and subject to no greater or lesser restrictions than) the power and other functions which the designated senior officer of the subscribing authority who would otherwise have dealt with the authorisation would have had, and( ) section 72(1) applies to the authorisation as if it were granted by a designated senior officer of the subscribing authority.”
Earl Howe
My Lords in moving this amendment I will speak to the other amendment in this group. They provide for the introduction of judicial approval for data retention notices given under Part 4 of the Bill. This is an important new safeguard. It means that such notices given, authorised or varied by the Secretary of State, including those requiring the retention of internet connection records, will in future also require the approval of a judicial commissioner.
The Secretary of State must already consider whether it is necessary and proportionate to issue a data retention notice to a telecommunications operator. This amendment would mean in future that the decision to give a notice would be reviewed by a Judicial Commissioner, in line with the authorisation procedures for other powers in the Bill. I hope that the House will welcome this additional safeguard and, accordingly, I beg to move.
Baroness Hayter of Kentish Town
My Lords, we take this opportunity to thank the Government for listening to us, to the service providers and, in this case, also to the human rights monitors—everyone is in agreement. We are happy to support the amendments.
(a) ”
“Approval of retention notices by Judicial Commissioners
(1) In deciding whether to approve a decision to give a retention notice, a Judicial Commissioner must review the Secretary of State’s conclusions as to whether the requirement to be imposed by the notice to retain relevant communications data is necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (j) of section 58(7).(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matters referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where a Judicial Commissioner refuses to approve a decision to give a retention notice, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to give a retention notice, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to give the notice.”
“Approval of retention notices following review under section 86
(1) In deciding whether to approve a decision to vary a retention notice as mentioned in section 86(10)(a), or to give a notice under section 86(10)(b) confirming the effect of a retention notice, the Investigatory Powers Commissioner must review the Secretary of State’s conclusions as to whether the requirement to be imposed by the notice as varied or confirmed to retain relevant communications data is necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (j) of section 58(7).(2) In doing so, the Investigatory Powers Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matters referred to in subsection (1) with a sufficient degree of care as to ensure that the Investigatory Powers Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where the Investigatory Powers Commissioner refuses to approve a decision to vary a retention notice as mentioned in section 86(10)(a), or to give a notice under section 86(10)(b) confirming the effect of a retention notice, the Investigatory Powers Commissioner must give the Secretary of State written reasons for the refusal.”
(a) ”
“(de) for section 83(3A) there were substituted—“(3A) A retention notice must not require an operator who provides a postal service (“the network operator”) to retain data which—(a) relates to the use of a postal service provided by another postal operator in relation to the postal service of the network operator,(b) is (or is capable of being) processed by the network operator as a result of being comprised in, included as part of, attached to or logically associated with a communication transmitted by means of the postal service of the network operator as a result of the use mentioned in paragraph (a),(c) is not needed by the network operator for the functioning of the network operator’s postal service in relation to that communication, and(d) is not retained or used by the network operator for any other lawful purpose,and which it is reasonably practicable to separate from other data which is subject to the notice.””
Earl Howe
Main Page: Earl Howe (Conservative - Excepted Hereditary)Department Debates - View all Earl Howe's debates with the Ministry of Defence
Investigatory Powers Bill
Earl Howe ExcerptsMonday 17th October 2016
(8 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, Amendment 131A seeks to provide in the Bill for an investigatory powers commission in addition to a commissioner. I listened with care to the noble Lord, Lord Paddick, and I understand how strongly he feels about this issue. The Government have been clear throughout the passage of the Bill that the Investigatory Powers Commissioner will lead a powerful new body—the noble Lord and I are, I think, in agreement on that principle. However, the Government have been equally clear that there is no need to create that body in statute. Our principal reason for adhering to that view is that doing so would not confer any new powers, duties or responsibilities on those working for the commissioner, nor would it affect their ability to audit, inspect and oversee public authorities.
I am the first to recognise the importance of public perception. However, as to whether it would benefit public perception to create a commission, I cannot see what advantages an anonymous quango holds over a senior, independent judge. The oversight and authorisation of investigatory powers are vital tasks that need to be performed and need to be performed well. Therefore, in my submission, it is right that an identifiable individual is ultimately responsible for them.
It is the difference between having a person with a public face and a body that risks being seen by the public as faceless. Since the oversight powers and duties are ultimately placed on the Investigatory Powers Commissioner, we logically expect that commissioner to be the public face of the body. It is the commissioner who will be called on to lead the public debate on these issues and to give his or her expert and considered legal view on the matters in the Bill. If, for example, someone receives a notification of an error under Clause 209, or if a report is made under Clause 212, it is better that such communications should come from a senior, named judicial figure rather than a faceless organisation.
Of course, it is necessarily the case that the commissioner will rely on the work of an extensive staff of expert inspectors and advisers. Again, though, I argue that that does not necessitate the creation of a commission in statute. When an inspector walks into a public authority, the fact that they are an employee of an investigatory powers commission would not give them any greater powers than if they are a representative of the Investigatory Powers Commissioner. I agree with one element of what the noble Lord, Lord Paddick, said: it is right that, in such circumstances, those employees should wield appropriate authority. The Government have listened to concerns expressed on this point and tabled amendments, which we will come to later, to make clear that the commissioners can delegate powers under the Bill to their staff. That will make absolutely clear that when the experts and inspectors employed by the commissioner go about their work, they do so with the full force of the commissioner behind them.
Moreover, creating a new body in statute would require the establishment of a board to run that body, complete with at least three non-executive directors. I was grateful to the noble Baroness, Lady Hayter, for her remarks on this point. In the eyes of many, this would muddy the waters of accountability and introduce considerable new bureaucracy into the work of the commissioner. It is much better that the commissioner’s resources and attention should be focused on overseeing the work of public authorities and providing public assurance, rather than on servicing a burgeoning bureaucracy.
Lord Paddick
Can the Minister reassure me that the circumstances that the Intelligence Services Commissioner found himself in—that is, with one of his investigators effectively being excluded when he was involved in investigating what the intelligence services knew prior to the murder of Fusilier Lee Rigby —could not happen in the absence of a body corporate being set up, as this amendment suggests? There are concerns that people in the security services might not acknowledge the authority of the inspectors if it is not the case.
Earl Howe
I fully believe that the amendments we have tabled will give inspectors the authority that is equivalent to that of a judicial commissioner. Although I was not aware of the case that the noble Lord cites, I think the government amendments will put the situation beyond doubt, if ever there was any. I do not believe that the problem the noble Lord refers to has ever impacted more widely on the ability of inspectors to do the job that is required of them; I like to hope that that was a one-off problem. However, with the benefit of the government amendments, it simply should not be an issue.
I hope I have reassured the noble Lord. Certainly, we cannot overlook the point that the creation of a new body would come at significant financial cost that would be of no gain in terms of public reassurance or effective oversight. As I have argued, it might risk making the oversight regime less clear. For a bunch of reasons, I hope the noble Lord will feel comfortable in reconsidering his amendment.
Lord Paddick
I am very grateful to the Minister. I am not sure that he is entirely reassured that the government amendments will deal with this issue, but I accept that that is because he did not have sight of my example prior to the debate. I regret not giving him notice that I would be bringing it up. However, given all the circumstances, I beg leave to withdraw the amendment.
Earl Howe
My Lords, I will speak to Amendment 132 and the others in the group. The government amendments in this group address the fact that the Northern Ireland Assembly has not provided legislative consent for this Bill. Only a small number of provisions in the Bill engage devolved responsibilities in Northern Ireland. These relate to oversight and to the proposal that the role of the Investigatory Powers Commissioner for Northern Ireland, who is responsible for overseeing the exercise of devolved powers, should be subsumed into the Investigatory Powers Commissioner that we are creating under the Bill.
In the absence of legislative consent, the existing office of the Investigatory Powers Commissioner for Northern Ireland will not be abolished. Consequently, the Bill need no longer provide for the First Minister and Deputy First Minister to be consulted on the appointment of the IPC. Similarly, the Prime Minister will no longer be under a statutory duty to send them a copy of the Investigatory Powers Commissioner’s annual report.
Additionally, appeals arising from the Investigatory Powers Tribunal under Clause 220 will no longer be heard by the Court of Appeal in Northern Ireland. It will be for the Investigatory Powers Tribunal to decide whether the Court of Appeal in England and Wales or the Court of Session in Scotland should hear the appeal instead. Although this is obviously not the most desirable appeal route for individuals from Northern Ireland, our hands are tied by lack of legislative consent from the Northern Ireland Executive.
Included in this group of government amendments are regulation-making powers allowing the Secretary of State, with the consent of the Northern Ireland Assembly, to reverse these amendments. Therefore, if legislative consent were given at some point in the future, the IPC could reasonably quickly take on the functions of the Investigatory Powers Commissioner for Northern Ireland and appeals could be allowed to go to the Court of Appeal in Northern Ireland. It is our hope that both these powers can be used in the near future. Accordingly, I hope noble Lords will support these amendments. I beg to move.
Lord Rosser (Lab)
My Lords, I want to make reference to the amendment that we have in this group. Clause 205 provides for the appointment of the Investigatory Powers Commissioner and judicial commissioners.
As currently drafted, Clause 205(5) requires the Prime Minister to consult Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland about the appointment of these commissioners. However, there appears to be currently no duty to consult Welsh Ministers about these appointments, with the result that Wales does not feel that it is being treated equally with the other devolved Administrations in this respect.
Under the Wales Bill before the House, Welsh devolution will take a constitutional form that is much closer to that for Scotland and Northern Ireland. The First Minister of Wales considers that the mutual respect between Administrations means that drawing unnecessary distinctions in legislation between devolved Administrations should be avoided unless strictly necessary. He regards the provision in this Bill—the Investigatory Powers Bill—as at the very least constitutionally discourteous to Wales. In speaking to this amendment, I invite the Government to take the necessary steps in relation to consultation under Clause 205 to address the concern raised by the First Minister on which I have just sought to reflect.
Earl Howe
My Lords, the Investigatory Powers Commissioner will be taking on the responsibilities of the three existing statutory commissioners in this area. I contend that Amendment 132A is unnecessary and indeed inappropriate because it would create an inconsistency across the Bill.
The appointment of commissioners to one of those existing bodies—the Office of Surveillance Commissioners —is currently a matter for the Prime Minister, following consultation with Scottish Ministers. Scottish Ministers also have the power to appoint surveillance commissioners for the purpose of overseeing the exercise of powers under the Regulation of Investigatory Powers (Scotland) Act 2000, or RIPSA.
Under the Bill, the IPC will take on responsibility for overseeing the exercise of powers under RIPSA. As a consequence, the Bill will remove the power of Scottish Ministers to appoint surveillance commissioners. To be consistent with the current position, the Bill therefore requires that Scottish Ministers must be consulted by the Prime Minister prior to the appointment of the IPC or a judicial commissioner. Similarly, the Bill currently requires the Prime Minister to consult the First Minister and Deputy First Minister of Northern Ireland on the appointment of a commissioner. This again reflects the fact that Northern Irish Ministers currently have a role in the appointment of the Investigatory Powers Commissioner for Northern Ireland, which the Bill had originally proposed to subsume into the office of the IPC.
In the event, as I have just said, the Bill has not received legislative consent from the Northern Ireland Assembly. Consequently, the amendments that I have already spoken to in this group would remove the requirement for consultation with Northern Irish Ministers. The noble Lord, Lord Murphy, said that that was a retrograde step, but without legislative consent for the Bill from the Northern Ireland Assembly, the Government have no alternative. In contrast, Welsh Ministers currently have no statutory role in the appointment of the existing commissioners. As the Bill will not affect the competence of Welsh Ministers, I do not consider it necessary to introduce a new right of consultation. Indeed, doing so would create an inconsistency between the treatment of Welsh Ministers and their counterparts in Northern Ireland.
The appointment of judicial commissioners is an important matter, which is why the Government have strengthened the Bill by requiring that appointments must be on the recommendation of the Lord Chief Justice of England and Wales, and that of his devolved counterparts. So Welsh interests will undoubtedly be represented by the Lord Chief Justice of England and Wales. Indeed, I note that the current Lord Chief Justice was in fact born in Wales. I do not consider that further changes to this process are necessary, particularly when they would serve to create inconsistencies within the Bill, as I have explained. On that basis, I hope that the noble Lord will agree not to press his amendment.
Lord Rosser
I thank the Minister for his response. The spirit of the amendment, frankly, is that in the light of the thrust of the Wales Bill the Government ought to be prepared to consider making the change sought in the amendment, which after all is about consultation. However, I note the response that has been received, which clearly indicates that the Government are not prepared to go down that road. I am sure that the First Minister will read the Government’s response carefully even though it will probably be without any enthusiasm.
(a) deciding—(i) whether to serve, vary or cancel a monetary penalty notice under section 7 or paragraph 16 of Schedule 1, a notice of intent under paragraph 4 of that Schedule or an information notice under Part 2 of that Schedule, or(ii) the contents of any such notice,(b) deciding whether to approve the issue, modification or renewal of a warrant,(c) deciding whether to direct the destruction of material or how otherwise to deal with the situation where—(i) a warrant issued, or modification made, for what was considered to be an urgent need is not approved, or(ii) an item subject to legal privilege is retained, following its examination, for purposes other than the destruction of the item,(d) deciding whether to—(i) approve the grant, modification or renewal of an authorisation, or(ii) quash or cancel an authorisation or renewal, (e) deciding whether to approve—(i) the giving or varying of a retention notice under Part 4 or a notice under section 228 or 229, or(ii) the giving of a notice under section 86(10)(b) or 233(9)(b),(f) participating in a review under section 86 or 233,(g) deciding whether to approve an authorisation under section 200(3)(b),(h) deciding whether to give approval under section (Additional safeguards for items subject to legal privilege: examination)(4),(i) deciding whether to approve the giving or varying of a direction under section 203(3),(j) making a decision under section 209(1),(k) deciding whether to order the destruction of records under section 103 of the Police Act 1997, section 37 of the Regulation of Investigatory Powers Act 2000 or section 15 of the Regulation of Investigatory Powers (Scotland) Act 2000,(l) deciding whether to make an order under section 103(6) of the Police Act 1997 (order enabling the taking of action to retrieve anything left on property in pursuance of an authorisation),(m) deciding—(i) an appeal against, or a review of, a decision by another Judicial Commissioner, and(ii) any action to take as a result.”
“( ) information about the operation of the safeguards conferred by this Act in relation to items subject to legal privilege, confidential journalistic material and sources of journalistic information,”
Earl Howe
My Lords, as we have discussed in previous debates in this House and in the other place, the use of thematic warrants is crucial to our law enforcement and security and intelligence agencies, but we welcome these amendments, which will provide reassurance that these warrants will be subject to specific scrutiny by the Investigatory Powers Commissioner and enhance transparency about their use.
The noble Lord, Lord Janvrin, invited me to comment on the degree of disclosure I would expect to see in the commissioner’s report. In my view—and I hope the noble Lord will understand this—it would not be appropriate for the Bill or indeed government to fetter the independence of the commissioner by specifying the detail of what he may choose to publish in relation to the use of thematic warrants. In due course the commissioner will wish to consider whether his duty to publish information about the use of these warrants is best satisfied by the publication of data such as the number of thematic warrants issued during a limited period or other information relating to the way in which thematic warrants are used in practice. These decisions will rightly rest with the Investigatory Powers Commissioner. However, I welcome the amendment which imposes a very clear duty on the commissioner to ensure that these warrants are subject to particularly robust scrutiny and that information is regularly put in the public domain about their use. Indeed, I would expect the commissioner to ensure that his report serves to illuminate any areas that cause him particular concern.
The process by which the Intelligence and Security Committee of Parliament can refer issues to the Investigatory Powers Commissioner was previously discussed in this House. It is right that the committee can bring issues that merit further investigation to the attention of the IPC, who may then decide whether to take further action. In addition, it is important that the right balance is struck between the independence of the IPC on the one hand and respecting the remit of the committee on the other hand. By requiring that the Prime Minister provides a copy of any IPC report that follows an investigation, inspection or audit carried out following a committee referral in cases where the report falls within the remit of the committee, this amendment finds that balance. Accordingly, I am happy to accept both these amendments.
Lord Janvrin
I thank the Minister for his helpful response. I take his point about the importance of the independence of the Investigatory Powers Commissioner.
“( ) information about the work of the Technology Advisory Panel,”
“( ) the Technology Advisory Panel,”
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.
“(bb) the issue, modification, renewal or service of a warrant under Part 2 or Chapter 1 of Part 6 of the Investigatory Powers Act 2016 (interception of communications);”
“Technology Advisory Panel
(1) The Investigatory Powers Commissioner must ensure that there is a Technology Advisory Panel to provide advice to the Investigatory Powers Commissioner, the Secretary of State and the Scottish Ministers about—(a) the impact of changing technology on the exercise of investigatory powers whose exercise is subject to review by the Commissioner, and(b) the availability and development of techniques to use such powers while minimising interference with privacy.(2) The Technology Advisory Panel must provide advice to the Investigatory Powers Commissioner about such matters falling within subsection (1)(a) or (b) as the Commissioner may direct.(3) Subject to this, the Panel may provide advice to the Investigatory Powers Commissioner about such matters falling within subsection (1)(a) or (b) as it considers appropriate (whether or not requested to do so).(4) The Panel may provide advice to the Secretary of State or the Scottish Ministers about such matters falling within subsection (1)(a) or (b) as it considers appropriate (whether or not requested to do so) but such advice to the Scottish Ministers may only relate to matters for which the Scottish Ministers are responsible.(5) The Panel must, as soon as reasonably practicable after the end of each calendar year, make a report to the Investigatory Powers Commissioner about the carrying out of the functions of the Panel. (6) The Panel must, at the same time, send a copy of the report to the Secretary of State and (so far as relating to matters for which the Scottish Ministers are responsible) the Scottish Ministers.”
“Members of the Panel
(1) The Investigatory Powers Commissioner must appoint such number of persons as members of the Technology Advisory Panel as the Commissioner considers necessary for the carrying out of the functions of the Panel.(2) Subject as follows, each member of the Panel holds and vacates office in accordance with the member’s terms and conditions of appointment.(3) A member of the Panel must not act in a way which the member considers to be contrary to the public interest or prejudicial to—(a) national security,(b) the prevention or detection of serious crime, or(c) the economic well-being of the United Kingdom.(4) A member of the Panel must, in particular, ensure that the member does not—(a) jeopardise the success of an intelligence or security operation or a law enforcement operation,(b) compromise the safety or security of those involved, or(c) unduly impede the operational effectiveness of an intelligence service, a police force, a government department or Her Majesty’s forces.(5) Section 213(2) and (7) (information powers) apply to a member of the Panel as they apply to a Judicial Commissioner.”
Earl Howe
Main Page: Earl Howe (Conservative - Excepted Hereditary)Department Debates - View all Earl Howe's debates with the Ministry of Defence
Investigatory Powers Bill
Earl Howe ExcerptsWednesday 19th October 2016
(8 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 62-III Third marshalled list for Report (PDF, 153KB) - (17 Oct 2016)
“Approval of major modifications by Judicial Commissioners
(1) In deciding whether to approve a decision to make a major modification of a bulk interception warrant, a Judicial Commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary.(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where a Judicial Commissioner refuses to approve a decision to make a major modification under section 137, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to make a major modification under section 137, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to make the modification.”
“( ) In deciding whether to give an approval under subsection (2) in a case where subsection (1)(b)(i) applies, a senior official must have regard to the public interest in the confidentiality of items subject to legal privilege.”
“( ) For the purposes of subsection (3)(b), there cannot be exceptional and compelling circumstances that make it necessary to authorise the use of the relevant criteria unless—(a) the public interest in obtaining the information that would be obtained by the selection of the intercepted content for examination outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) obtaining the information is necessary in the interests of national security or for the purpose of preventing death or significant injury.”
“(3A) Subsection (3B) applies if, in a case where intercepted content obtained under a bulk interception warrant is to be selected for examination—(a) the selection of the intercepted content for examination meets any of the selection conditions in section 143(3)(a) to (c),(b) the purpose, or one of the purposes, of using the criteria to be used for the selection of the intercepted content for examination (“the relevant criteria”) is to identify communications that, if they were not made with the intention of furthering a criminal purpose, would be items subject to legal privilege, and(c) the person to whom the warrant is addressed considers that the communications (“the targeted communications”) are likely to be communications made with the intention of furthering a criminal purpose.(3B) The intercepted content may be selected for examination using the relevant criteria only if a senior official acting on behalf of the Secretary of State has approved the use of those criteria.(3C) A senior official may give an approval under subsection (3B) only if the official considers that the targeted communications are likely to be communications made with the intention of furthering a criminal purpose.”
“(4A) The Investigatory Powers Commissioner may—(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(4B) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (4A), and(b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(4C) Each of the following is an “affected party” for the purposes of subsection (4B)—(a) the Secretary of State;(b) the person to whom the warrant is or was addressed.”
“Additional safeguard for confidential journalistic material
Where—(a) a communication which has been intercepted in accordance with a bulk interception warrant is retained, following its examination, for purposes other than the destruction of the communication, and(b) it is a communication containing confidential journalistic material,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.(For provision about the grounds for retaining material obtained under a warrant, see section 141.)”
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”
Lord Paddick
My Lords, the amendment is in my name and that of my noble friend Lady Hamwee. I shall speak also to all the other amendments in this group, Amendments 203B to 203D, 204A to 204F, 205A, 208A to 208C, 209A, 210A and 210B, 215A, 217A and 218A. The sole effect of all the amendments would be to remove from the Bill the power to engage in bulk equipment interference.
This is a new power for the security and intelligence agencies to carry out equipment interference in bulk overseas. It is not a power they currently have and, according to David Anderson QC, it is not something that they currently do. As a result, David Anderson said in his review of bulk powers that the operational case for bulk equipment interference was “not yet proven”. The noble Lord, Lord Murphy, has said:
“The case for bulk equipment interference was less strong, but nevertheless still there”.—[Official Report, 7/9/2016; col. 1049.]
As the noble Lord, Lord Rosser, said in Committee, there is a difference between an operational case, let alone an unproven one, and proportionality or desirability. Quoting Mr Anderson, he pointed out that Mr Anderson assessed only the operational cases in his review, saying that the issues of proportionality and necessity were a matter for Parliament—which is why we are debating these amendments today.
We heard in earlier debates about the potentially broad scope of targeted equipment interference warrants. They can specify all equipment used by anyone in a particular organisation or more than one organisation involved in a single investigation or operation; all equipment used by members of a group with a common purpose or engaged in a particular activity; equipment in a particular location or more than one location for the purpose of a single investigation or operation; and equipment being used or that may be used for a particular activity or activities. That is all contained in Clause 108.
Although I realise that the primary focus of this House should be to protect the citizens of this country, I ask noble Lords to consider how they would feel if overseas Governments took our lead and enacted similar legislation that could be deployed against the UK and its citizens. UK citizens’ communications could be acquired through the use of bulk equipment interference warrants if they communicated with others based overseas.
In paragraph 7.37 of his report into bulk powers, David Anderson QC warns that considerable caution is required for a series of reasons. He concludes in paragraph 7.38:
“All this means that bulk EI will require, to an even greater extent than the other powers subject to review, the most rigorous scrutiny not only by the Secretary of State but by the Judicial Commissioners who must approve its use and by the IPC which will have oversight of its consequences”.
It is the nearest David Anderson comes to expressing an opinion on necessity and proportionality and, reading between the lines, it is clear that he is not keen.
For those reasons—and as the Intelligence and Security Committee initially recommended, although it was subsequently persuaded—we believe that bulk equipment interference warrants should be removed from the Bill. I beg to move.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, these amendments would remove the bulk equipment interference provisions from the Bill. Before I address the amendments specifically, it is worth pausing to reflect briefly on the importance of bulk powers in the round and the very significant steps that the Government have taken to ensure both that a robust operational case has been made for their necessity and that the most rigorous safeguards will apply to their use.
Extremely detailed and extensive scrutiny has been applied to bulk powers during the passage of the Bill, both in Parliament and, of course, by David Anderson QC as part of his bulk powers review. The conclusion of that review was that bulk powers,
“have a clear operational purpose”;
that they,
“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”;
and that where alternatives exist to their use,
“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or—crucially—slower”.
The Government have now tabled amendments giving full effect to the sole recommendation of that review, establishing in statute a Technology Advisory Panel to the Investigatory Powers Commissioner. We have also accepted an amendment tabled by the Intelligence and Security Committee which introduces a specific offence in the Bill to address deliberate misuse of the bulk powers. We have addressed wider concerns of that committee by adding very significant detail to the Bill on the safeguards that will regulate the use of these powers. I am grateful for the intensive scrutiny that has been applied to the bulk provisions in the Bill and believe that those provisions are all the stronger for it. There should now be no question that these powers are necessary and they are subject to world-leading safeguards.
(a) ceases to have effect (unless already cancelled), and(b) may not be renewed;and section 166(4) does not apply in relation to the refusal to approve the decision.”
“Approval of major modifications by Judicial Commissioners
(1) In deciding whether to approve a decision to make a major modification of a bulk equipment interference warrant, a Judicial Commissioner must review the Secretary of State’s conclusions as to the following matters— (a) whether the modification is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary, and(b) in the case of a major modification adding or varying any description of conduct authorised by the warrant, whether the conduct authorised by the modification is proportionate to what is sought to be achieved by that conduct.(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matters referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where a Judicial Commissioner refuses to approve a decision to make a major modification under section 173, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to make a major modification under section 173, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to make the modification.”
“( ) In deciding whether to give an approval under subsection (2) in a case where subsection (1)(b)(i) applies, a senior official must have regard to the public interest in the confidentiality of items subject to legal privilege.”
“Additional safeguard for confidential journalistic material
Where—(a) material obtained under a bulk equipment interference warrant is retained, following its examination, for purposes other than the destruction of the material, and(b) it is material containing confidential journalistic material,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.(For provision about the grounds for retaining material obtained under a bulk equipment interference warrant, see section 177.)”
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”
“and section 190(4) does not apply in relation to the refusal to approve the decision.”
(d) where the Secretary of State has imposed conditions under section (Protected data: power to impose conditions), specify those conditions.”
“( ) Section (Protected data: power to impose conditions) applies in relation to the renewal of a specific BPD warrant as it applies in relation to the issue of such a warrant (whether or not any conditions have previously been imposed in relation to the warrant under that section).”
“Approval of major modifications by Judicial Commissioners
(1) In deciding whether to approve a decision to make a major modification of a class BPD warrant or a specific BPD warrant, a Judicial Commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary.(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy). (3) Where a Judicial Commissioner refuses to approve a decision to make a major modification under section 197, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to make a major modification under section 197, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to make the modification.”
“( ) In deciding whether to give approval for the purposes of subsection (3)(b), the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).”
“Additional safeguards for items subject to legal privilege: examination
(1) Subsections (2) and (3) apply if, in a case where protected data retained in reliance on a specific BPD warrant is to be selected for examination—(a) the purpose, or one of the purposes, of using the criteria to be used for the selection of the data for examination (“the relevant criteria”) is to identify any items subject to legal privilege, or(b) the use of the relevant criteria is likely to identify such items.(2) If the relevant criteria are referable to an individual known to be in the British Islands at the time of the selection, the data may be selected for examination using the relevant criteria only if the Secretary of State has approved the use of those criteria.(3) In any other case, the data may be selected for examination using the relevant criteria only if a senior official acting on behalf of the Secretary of State has approved the use of those criteria.(4) The Secretary of State may give approval for the purposes of subsection (2) only with the approval of a Judicial Commissioner.(5) Approval may be given under subsection (2) or (3) only if—(a) the Secretary of State or (as the case may be) the senior official considers that the arrangements mentioned in section 188(6)(d) include specific arrangements in respect of items subject to legal privilege, and(b) where subsection (1)(a) applies, the Secretary of State or (as the case may be) the senior official considers that there are exceptional and compelling circumstances that make it necessary to authorise the use of the relevant criteria.(6) In deciding whether to give an approval under subsection (2) or (3) in a case where subsection (1)(a) applies, the Secretary of State or (as the case may be) the senior official must have regard to the public interest in the confidentiality of items subject to legal privilege.(7) For the purposes of subsection (5)(b), there cannot be exceptional and compelling circumstances that make it necessary to authorise the use of the relevant criteria unless—(a) the public interest in obtaining the information that would be obtained by the selection of the data for examination outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) obtaining the information is necessary in the interests of national security or for the purpose of preventing death or significant injury.(8) In deciding whether to give approval for the purposes of subsection (4), the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(9) Subsections (10) and (11) apply if, in a case where protected data retained in reliance on a specific BPD warrant is to be selected for examination— (a) the purpose, or one of the purposes, of using the criteria to be used for the selection of the data for examination (“the relevant criteria”) is to identify data that, if the data or any underlying material were not created or held with the intention of furthering a criminal purpose, would be an item subject to legal privilege, and(b) the person to whom the warrant is addressed considers that the data (“the targeted data”) or any underlying material is likely to be data or underlying material created or held with the intention of furthering a criminal purpose.(10) If the relevant criteria are referable to an individual known to be in the British Islands at the time of the selection, the data may be selected for examination using the relevant criteria only if the Secretary of State has approved the use of those criteria.(11) In any other case, the data may be selected for examination using the relevant criteria only if a senior official acting on behalf of the Secretary of State has approved the use of those criteria.(12) Approval may be given under subsection (10) or (11) only if the Secretary of State or (as the case may be) the senior official considers that the targeted data or the underlying material is likely to be data or underlying material created or held with the intention of furthering a criminal purpose.(13) In this section, “underlying material”, in relation to data retained in reliance on a specific BPD warrant, means any communications or other items of information from which the data was produced.”
“( ) In deciding whether to give approval for the purposes of subsection (7), the Judicial Commissioner must apply the same principles as would be applied by a court on an application for judicial review.”
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.
“( ) In a case where—(a) a national security notice would require the taking of any steps, and(b) in the absence of such a notice requiring the taking of those steps, the taking of those steps would be lawful only if a warrant or authorisation under a relevant enactment had been obtained,the notice may require the taking of those steps only if such a warrant or authorisation has been obtained.”
Earl Howe
My Lords, I shall speak also to the other government amendments. Government Amendments 247 to 250 clarify the activity that can be authorised by a national security notice to provide greater reassurance to telecommunications operators to whom such a notice may be given. These amendments also respond to concerns raised in the Commons that the detail set out in the draft code of practice was clearer than the provisions in the Bill.
Clause 228 states that the Secretary of State may give such a notice to a telecommunications operator in the UK, requiring the taking of such specified steps as are considered necessary in the interests of national security. The type of support that may be required includes the provision of services or facilities which would help the intelligence agencies to safeguard the security of their personnel and operations, or provide assistance with an emergency as defined in Section 1 of the Civil Contingencies Act 2004.
Amendment 248 makes it clear that a national security notice cannot be used for the primary purpose of acquiring communications or data. The proposed amendments further clarify that, in any circumstance where the taking of a step set out in the notice would involve the acquisition of private data, any interference with privacy must be authorised by an appropriate warrant or other authorisation under the Bill, or another relevant statute, where it is available. Therefore, a notice, of itself, cannot authorise as its primary purpose an intrusion into an individual’s privacy.
I should like to emphasise here that this power can be exercised only if the Secretary of State and a judicial commissioner are satisfied that the conduct required by a notice is necessary and proportionate to what is sought to be achieved.
In addition, Amendment 250 makes it clear that any conduct required under a notice is lawful for all purposes, providing reassurance for telecommunications operators that, when conduct is carried out in accordance with the requirements of a notice, the operator will not risk being found to be in breach of any other legal requirement.
I hope that these amendments reassure noble Lords that a national security notice cannot be used to circumvent the need to obtain a warrant or authorisation, but neither could it prohibit the acquisition of private data when such conduct has been appropriately authorised.
Lord Paddick
I can certainly tell the noble Lord that Yahoo! was one of the operators, but I do not have a list to hand.
Earl Howe
My Lords, Amendment 250A would define a technical capability notice as,
“specifying the distinct service or product to which the notice applies”.
I do not believe this amendment is necessary. The safeguards that apply to the giving of a notice under the Bill already ensure that a technical capability notice cannot be of a generic nature. I will not go into detail here about the lengthy process that must be undertaken before a notice can be given; we have discussed them at length previously and we will undoubtedly review them again shortly during our discussions on encryption. But it might be helpful for me to summarise.
Before giving a notice, the Secretary of State must consult the company concerned. This process will ensure that the company is fully aware of which services the notice applies to. The decision to issue a notice must be approved by the Secretary of State and a judicial commissioner. The obligations set out in the notice must be clear so that the Secretary of State and judicial commissioner can take a view as to the necessity and proportionality of the conduct required. As I have already mentioned, we propose a similar role for the judicial commissioner when a notice is varied. The operator may raise any concerns about the requirements to be set out in the notice, including any lack of clarity regarding their scope, during the consultation process. The operator may also seek a formal review of their obligations, as provided for in Clause 233. The safeguards which apply to the giving of a notice have been strengthened during the Bill’s passage through Parliament, and will ensure that the regime provided for under the Bill will be more targeted than that under existing legislation. It is for these reasons that I consider the amendment unnecessary.
Amendment 251A seeks to narrow the category of operators to whom a technical capability notice could be given. This change would exclude operators that provide services that have a communications element but are not primarily a communication service. This amendment, which has already been discussed in the Commons, is also unnecessary and, in my view, risks dangerously limiting the capabilities of law enforcement and the security and intelligence agencies. We are aware that the manner in which criminals and terrorists communicate is diversifying, as they attempt to find new ways to evade detection. We cannot be in a situation where terrorists, paedophiles and other criminals can use technology to escape justice. As David Anderson said,
“no-go areas for law enforcement should be minimised as far as possible, whether in the physical or the digital world”.
It is important that the Government can continue to impose obligations relating to technical capabilities on a range of operators to ensure that law enforcement and the security and intelligence agencies can access, in a timely manner, communications of criminals and terrorists using less conventional services, such as those offered by gaming service providers and online marketplaces. It may be appropriate to exclude certain categories of operators from obligations under this clause, such as small businesses, but it is our intention to use secondary legislation to do so. It would not be appropriate to impose blanket exemptions on services that have a communications element but are primarily not a communication service, since to do so would make it clear to terrorists and criminals that communications over such systems could not be monitored.
For all the reasons I have set out, I hope that the noble Lord, Lord Paddick, will feel able to withdraw his amendment.
Lord Beith (LD)
Before the noble Earl sits down, I refer to a point which at least needs to be borne in mind in drafting regulations. In most circumstances, if the Government impose upon a business an obligation of some kind, and behave totally unreasonably in doing so—or the business thinks that the Government are behaving unreasonably—the matter will end up in public discussion and the company has the weapon of saying to the public at large, “The Government are asking us to do something unreasonable”. That must not happen in these circumstances because clearly secrecy must be maintained. Therefore, the company is in a weaker position than it would be in the normal exchange between government and business. I hope that Ministers will recognise that fact.
Earl Howe
With the leave of the House, I am grateful to the noble Lord for raising that point, which I think will come up in the next group of amendments when we discuss encryption because it is centre stage in that issue. He is absolutely right and I hope that I can assuage his concerns in the next debate.
Lord Paddick
I am very grateful to the Minister, particularly for his explanation around Amendment 251A. I completely accept that the whole range of ways in which people can communicate potentially needs to be covered. I am encouraged by the fact that there may be some exceptions in secondary legislation. It is unfortunate that we do not have sight of that before I withdraw this amendment but life is like that.
Bearing in mind the fact that the Minister did not articulate any downside to Amendment 250A, I wonder why the Government will not accept it, given that it appears not to limit the Government’s action in any way. However, at this stage, I beg leave to withdraw the amendment.
Earl Howe
My Lords, I hope that the House will allow me to speak at somewhat greater length than usual in responding to these amendments. I recognise the concern that lies behind them and I also recognise that, although we debated the Bill’s provisions on encryption in Committee, there is a need to correct a number of misconceptions that have been expressed and to set out the reality of the Government’s position on encryption. I would also like to make clear what the provisions in the Bill do and, crucially, what they do not do, and to explain why these provisions are so important to our law enforcement and intelligence agencies. I hope that by, setting this out, I can reassure noble Lords that the amendments are not necessary.
As we have made clear before, the Government recognise the importance of encryption. It keeps people’s personal data and intellectual property secure and ensures safe online commerce. The Government work closely with industry and businesses to improve their cybersecurity. For example, GCHQ plays a vital information assurance role, providing advice and guidance to enable government, industry and the public to protect their IT systems and use the internet safely. Indeed, the director of GCHQ said in March that he is accountable to the Prime Minister just as much, if not more, for the state of cybersecurity in the UK as he is for intelligence collection.
In the past two years, the security and intelligence agencies have disclosed vulnerabilities in every major mobile and desktop platform, including the big names that underpin British business. You do not have to take the Government’s word for that. In September 2015, Apple publicly credited the information assurance arm of GCHQ with the detection of a vulnerability in its operating system for iPhones and iPads, which could otherwise have been exploited by criminals to disrupt devices and extract information from them. As a result, this vulnerability could be fixed.
The assertion that the Government are opposed to encryption or would legislate to undermine it is fanciful. However, the Government and Parliament also have a responsibility to ensure that our security and intelligence services and law enforcement agencies have the capabilities necessary to keep our citizens safe. Encryption is now almost ubiquitous and is the default setting for most IT products and online services. While this technology is primarily used by law-abiding citizens, it can also be used—easily and cheaply—by terrorists and other criminals. Therefore, it can only be right that we retain the ability, as currently exists in legislation, to require a telecommunications operator to remove encryption in limited circumstances, subject to strong controls and safeguards. If we do not provide for this ability, then we must simply accept that there can be areas online beyond the reach of the law where criminals can go about their business unimpeded and without the risk of detection. That would be both irresponsible and wrong.
That is our starting principle, and it is one that we share with David Anderson QC. I have quoted this before, but he stated in his investigatory powers review, A Question of Trust:
“My first principle is that no-go areas for law enforcement should be minimised as far as possible, whether in the physical or digital world”.
This principle was also shared by the Joint Committee on the draft Bill and the Science and Technology Committee, both of which recognised that, in tightly prescribed circumstances, it should remain possible for our law enforcement agencies and security and intelligence services to be able to access unencrypted communications or data. That is exactly what Clauses 229 to 234 of the Bill provide for: strong safeguards to ensure that obligations to remove encryption can be imposed only in limited circumstances and subject to rigorous controls.
Clause 229 enables the Secretary of State to give a technical capability notice to a telecommunications operator in relation to interception, communications data or equipment interference. As part of maintaining a technical capability, the Bill makes clear at Clause 229(5)(c) that the obligations that may be imposed on an operator by the Secretary of State can include the removal of encryption. Before a technical capability notice is given, the Secretary of State must specifically consider the technical feasibility and likely cost of complying with it. Clause 231(4) provides that this consideration must explicitly take account of any obligations to remove encryption.
The Secretary of State must also consult the relevant operator before a notice is given. The draft codes of practice, which were published on 4 October, make clear that should the telecommunications operator have concerns about the reasonableness, cost or technical feasibility of any requirements to be set out in the notice, which of course includes any obligations relating to the removal of encryption, it should raise these concerns during the consultation process.
We have also amended the Bill to make clear that the Secretary of State may give a technical capability notice only where he or she considers that it is necessary and proportionate to do so, and, under Clause 230, that decision must also now be approved by a judicial commissioner, placing the stringent safeguard of the double lock on to any giving of a notice to require the removal of encryption. Clause 2 of the Bill, the privacy clause, also makes explicit that, before the Secretary of State may decide to give a notice, he or she must have regard to the public interest in the integrity and security of telecommunications systems.
In addition, a telecommunications operator that is given a technical capability notice may refer any aspect of the notice, including obligations relating to the removal of encryption, back to the Secretary of State for a review. In undertaking such a review, the Secretary of State must consult the Technical Advisory Board in relation to the technical and financial requirements of the notice, as well as a judicial commissioner in relation to its proportionality. We have amended the review clauses in the Bill to strengthen these provisions further. Where the Secretary of State decides that the outcome of the review should be to vary or confirm the effect of the notice, rather than to revoke it, that decision must be approved by the Investigatory Powers Commissioner.
The Bill also makes absolutely clear that, in line with current practice, obligations imposed on telecommunications operators to remove encryption may relate only to encryption applied by or on behalf of the company on whom the obligation is being placed. That ensures that such an obligation cannot require a telecommunications operator to remove encryption applied by other companies to data transiting their network. As we have already outlined, we have also now tabled a government amendment that would further strengthen the Bill’s provisions on technical capability notices. This amendment makes clear that the Secretary of State may vary a notice only where they consider that it is necessary and proportionate to do so. The amendment also makes clear that, in circumstances where a notice is being varied in such a way that would impose new obligations on the operator, the variation must be approved by a judicial commissioner.
Furthermore, obligations imposed under a technical capability notice to remove encryption require the relevant operator to maintain the capability to remove encryption when it is subsequently served with a warrant, notice or authorisation, rather than requiring it to remove encryption per se. That means that companies will not be forced to hand over encryption keys to the Government. Such a warrant, notice or authorisation will be subject to the double lock of Secretary of State and judicial commissioner approval, and the company on whom the warrant is served will not be required to take any steps, such as the removal of encryption, if they are not reasonably practicable steps for that company to take. So a technical capability notice could not, in itself, authorise an interference with privacy. It would simply require a capability to be maintained that would allow a telecommunications operator to give effect to a warrant quickly and securely including, where applicable, the ability to remove encryption.
That is an enormously long list of safeguards. Indeed, it is difficult to think what more the Government could do. These safeguards ensure that an obligation to remove encryption under Clause 229 of the Bill will be subject to very strict controls and may be imposed only where it is necessary and proportionate, technically feasible and reasonably practicable for the relevant operator to comply. Let me be clear: the Bill’s provisions on encryption simply maintain and clarify the current legal position, and apply strengthened safeguards to those provisions. They will mean that our law enforcement and security and intelligence agencies maintain the ability to require telecommunications operators to remove encryption in very tightly defined circumstances.
I would also like to make absolutely clear what the Bill does not provide for on encryption.
Lord Beith
Could the Minister help those of us who are not deeply technical in these matters? We fear that circumstances by their nature cannot be technical and defined. In at least some cases, the consequences of serving a notice would be that the operator would have to create a significant weakness, which would apply far beyond the objective for which the notice was being served, and the operator would have to say in future to its customers, “This system is not as strong as we would like it to be”.
Earl Howe
We come back to the test of reasonable practicability here. I am about to come on to what the Bill does not provide for on encryption and I hope that this will help the noble Lord.
The Bill does not ban encryption or do anything to limit its use. The Bill will not be used to force providers to undermine their business models, to create so-called back doors or to compromise encryption keys. It will not be used to prevent new encrypted products or services from being launched and it will not undermine internet security.
Lord Harris of Haringey
I am very grateful for the detailed exposition that has been given. The Minister says that the Bill will not be used to do those things. Can he confirm that it cannot be used to do those things?
Earl Howe
My Lords, some noble Lords have suggested the Bill’s provisions cause a weakening in encryption, which I think is the central point that the noble Lord is getting at. Many of the biggest companies in the world rely on strong encryption to provide safe and secure communications and e-commerce, but retain the ability to access the content of their users’ communications for their own business purposes, such as advertising, as we have heard. These companies’ reputations rest on their ability to protect their users’ data. This model of encryption can, and does, maintain users’ security. I do not think that anyone would dispute that.
Before I come on to the individual amendments, it would be helpful to address a number of specific points that were raised in relation to encryption. There was a suggestion that a company should never be asked to do something that it does not already do. Such an approach would of course, at a stroke, remove our ability to use any of the powers in the Bill, including carrying out any interception of terrorists’ and serious criminals’ communications, because companies do not do this in the normal course of their business.
There was a suggestion that equipment interference would do away with the need for these provisions. It will not. Equipment interference is no substitute for having a company’s assistance. Even if it were, there are only a very small number of very clever people who are able to carry out equipment interference. There will never be the capacity to deploy them on each and every operation.
Finally, there was a suggestion that encryption is not a problem for the security and intelligence agencies. The heads of those agencies have repeatedly made clear that ubiquitous encryption is one of the most difficult challenges they face.
I now turn to the individual amendments, because I hope that this will clarify the picture further. Amendment 251 seeks to preclude an obligation to remove encryption from being imposed under a technical capability notice in relation to end-to-end encrypted services. I hope that the points I have already made make clear why the proposed amendment is not necessary and indeed why it is not desirable. As I have set out, the Government recognise the vital importance of encryption. Nothing in the Bill does anything to limit its use, and that of course includes the use of end-to-end encryption. But I have also set out the dangers of creating a guaranteed safe space online for those who would seek to do the public harm such as terrorists and other serious criminals, and I am afraid that that is exactly what this amendment would do. The amendment seeks to make explicit provision in law for there to be certain online services that criminals can use to go about their business unimpeded with no fear of being caught. That is not a position that any responsible Government or, I hope, Parliament could support.
What we must ensure is that the Bill enables us to work collaboratively with individual telecommunications operators to establish what steps are reasonably practicable for them to take, considering a range of factors including technical feasibility and likely cost. Any decision will have regard to the particular circumstances of the case, recognising that there are many different models of encryption, including many different models of end-to-end encryption, and that what is reasonably practicable for one telecommunications operator may not be for another.
As I have already said, this is not about asking companies to undermine their existing business models; it is about working with them to find a solution to ensure both that their customers’ data remain secure and that their services cannot be exploited by individuals who pose a threat to the UK. So in answer to the question put by the noble Lord, Lord Harris, I can confirm that these provisions cannot be used to introduce back doors or undermine internet security.
Lord Strasburger
My Lords, if the noble Earl is so confident that none of the unintended consequences listed in Amendment 252A can occur, and that the Government do not want them to occur, what is his objection to putting them into the Bill?
Earl Howe
We already have a wide range of safeguards which I have listed. I do not see that it is necessary to go down the road the noble Lord is advocating because of the dangers that I have pointed out. These amendments would create safe spaces which I am sure that neither he nor any noble Lord would desire to occur.
Lord Harris of Haringey
My Lords, I am enormously grateful to the noble Earl for his detailed response and for reiterating the welcome and voluminous safeguards that are set out in the Bill. They are important and valuable, and they give me confidence about the context of the whole Bill. However, the argument with which he concluded does not quite hold together and there is an elision between different issues. The noble Earl has given an absolute assurance, I think on the basis of a piece of paper that was handed to him, that it cannot be used to require a communications service provider to build a back door or to create one in a future area. But then he said that we must not put in the Bill something that creates a safe space. Either the Government’s position is that this cannot be used to require a company to produce a back door, in which case the safe space exists and presumably the Government are not happy with their own legislation, or it is the case that the Bill could require a communications service provider to build such a back door.
We have already heard from the noble Lord, Lord Evans of Weardale, that what we are trying to do here is balance two national security concerns: the national security concern to prevent terrorism and so on and the national security concern about making it slightly easier for cybercriminals. These are very important issues. If the Government are clear that, as a result of the Bill, a technical capability notice could not require an operator to build a back door that would otherwise not exist, it is important to set that out in the Bill. If we are in a position where techUK says—as it has in the briefing it circulated to me and, I am sure, to other noble Lords—that this is ambiguous, perhaps it is the responsibility of the Government to remove that ambiguity and make the position clear. I do not really want to have to divide the House on this matter, so between now and Third Reading, is the noble Earl prepared to turn the unequivocal assurance he has given that it cannot be used in this way into an amendment to the Bill that will remove that ambiguity?
Earl Howe
With the leave of the House, I hope I can help the noble Lord on this because I do not believe that the Bill is contradictory. First, the term “back door” has been used, but I do not think that is a helpful or accurate way of describing the Bill’s provisions. “Back door” is in everyone’s judgment a loosely defined term. It is used incorrectly to imply that the Bill would enable our law enforcement, security and intelligence agencies to gain unrestricted access to a telecommunications operator’s services or systems, thereby undermining the security of those services—to force that to happen. That is absolutely not the case. The Bill enables our agencies to require telecommunications operators to remove encryption themselves, only in tightly defined circumstances: where they have applied the encryption themselves; where it has been applied on their behalf; where it is reasonably practicable for them to remove it; and where doing so is required to comply with a relevant warrant, notice or authorisation.
I come back to the point I made earlier. This is about the Government being able to sit down with companies and reach agreement with them on the basis of what is reasonably practicable, affordable and so on. It would not be responsible for any Government to deny themselves the possibility of doing that and discussing what in all the circumstances is reasonably practicable for the company, and for the company to agree to do it.
Lord Harris of Haringey
Again I am grateful to the noble Earl. I do not think anyone here has misunderstood the point that this is not about giving the Government uninterrupted access. It is about requiring companies to create a facility so that if they are asked, after all the suitable warrants have been gone through and all the safeguards have been fulfilled, to gain information and pass it back to the Government. I accept that that is the position and that is what is intended here. However, the Minister has still not been unequivocal on whether technical capability measures could require such a facility to be created, so that, in those circumstances and with all those safeguards in place, something could be done. It is a critical issue that we need to clarify. Otherwise, we do not know where we stand as far as the amendment is concerned. The Minister needs to provide the House and the IT industry with as much clarity as he can on this point, because the danger is that it will become the subject of continual argument.
Were the Bill to be amended by any of the amendments in this group, the Government would still have the option to say that they were minded to serve a technical capability notice on a particular company. That would then trigger a series of discussions, because it is what the Bill provides for, and a communications service provider might come back at that point and say, “Look, we literally cannot do it. We do not have the facility”. However, it is not clear whether the Government could none the less say, “Well, we understand that, but we are requiring you to do it”. The question then is: what is or what is not feasible? I happen to believe that some of the biggest communications service providers in the world have more computing expertise than any nation state. If they are told, “You are legally required to do this”, they could do it; they could find a way of making it happen. We have to be explicit as to what the Government’s expectation is. Are they saying, “No, that is not what we are requiring”, or are they saying, “Well, we might”? If they are saying, “We might”, that clarifies the position, if not helpfully. If they are saying, “No, we are not”, which is what the Minister said earlier, perhaps we could put that in the Bill—if not in the form of words proposed, then in some form of words that the Government could craft between now and next week. That would be a helpful way forward and provide absolute clarity as to the extent to which technical capability notices could be served. If I am not able to get that assurance from him—I appreciate that bits of paper have been flying backwards and forwards between him and the Box—we are in a very difficult position.
Earl Howe
I can state categorically to the noble Lord that it is absolutely not the case that the Bill would force a company to insert a back door, thereby undermining internet security. We might ask a company in certain circumstances to decrypt particular data if it was reasonably practicable and feasible for them to do so.
Lord Harris of Haringey
My Lords, I understand that that is the case; that is, if they have the encryption key—we will not use “back door”; we will find another form of words—and the capability to do it, and it is not too complicated and all the relevant warrants are in place, yes, they will do that. As I understand it, most tech companies are perfectly understanding of that and willing to do it. The question is whether, if the Government were presented with a situation they were concerned about, they could say to one of the biggest communications service providers in the world, “We are asking you to build something which is not there at the moment, but we’ll provide that facility for those circumstances that might arise in the future when we’ve gone through all the relevant warrants and so on”. I am looking for an assurance from the Minister that that is not sought here, because of the dangers that we have already discussed. If he wishes, I can reiterate the question to give the Minister the opportunity to read the piece of paper that has just arrived.
Earl Howe
Of course, a technical capability notice can require a new capability to be built; that is what they are there for. If it was neither practicable nor feasible, they would not have to do it. The problem here is that it is very difficult to generalise, because any decision about these things would have to have regard to the particular circumstances of the case. As I said, there are many different models of encryption, including many different models of end-to-end encryption. Any decision has to recognise that what is reasonably practicable for one telecommunications operator may not be for another. That is why I have referred repeatedly to the need for the Government and industry to have that easy interchange which they do at the moment. It is important to emphasise that these powers already exist in law today. We should not do anything that undermines the basis for the constructive discussions that we are having.
Lord Harris of Haringey
The Minister reminds us that the ideal arrangement is one of easy interchange and discussion—I understand that that carries on and works very well. He is right to say—this is why the wording of the current legislation is ambiguous and therefore a problem—that building a technical capability could mean simply putting in a piece of equipment, which means that, at the point at which the Government ask, having gone through all the voluntary processes, it is quite a straightforward matter to provide the information that the Government have legitimately and lawfully requested. That is one definition of technical capability.
What I want to know is whether “technical capability” could apply to a very secure end-to-end encryption process which no communications service provider could break but where, if they devoted thousands of person hours in California or wherever they operate from, they could develop something which might do that. If that is what the Bill is saying, we need to know.
Lord Harris of Haringey
I accept that it would not be reasonably practicable; it would also be very expensive—as I understand the Bill, the Government would have to pay for it and I am sure that technical experts in California or wherever might be very expensive. If that is the case, and if it is not possible to write it into the Bill—I would have thought it could be—it would be helpful for the Minister to write and make very clear what the Government’s intentions are in that regard and confirm that such circumstances are precluded by the Bill. If the Minister is prepared to do that, I am prepared not to press the amendment to a vote.
Earl Howe
I think I have made the Government’s position as clear as I possibly can and I am not sure what I can do to amplify the remarks I have already made. While I want to be as helpful as possible to the noble Lord, I am struggling to see how a letter from me would make the position clearer.
Lord Harris of Haringey
I understand the Minister’s dilemma and I am sure that a letter from him to me would have far less force than the words appearing in Hansard. I appreciate that the courts can look at the debates in Hansard to try to interpret them. However, I ask that the Minister spends the next few days just thinking about some further modification to the Bill to make sure that this ambiguity, which I think genuinely exists—because techUK tells me so—is cleared up. On the basis that I am sure he will spend his waking hours between now and next Monday thinking about precisely these matters, I beg leave to withdraw the amendment.
(a) the Secretary of State considers that the variation is necessary in the interests of national security,(b) ”
“General definitions: “journalistic material” etc.
(1) The definitions in this section have effect for the purposes of this Act.Journalistic material(2) “Journalistic material” means material created or acquired for the purposes of journalism.(3) For the purposes of this section, where—(a) a person (“R”) receives material from another person (“S”), and(b) S intends R to use the material for the purposes of journalism,R is to be taken to have acquired it for those purposes.Accordingly, a communication sent by S to R containing such material is to be regarded as a communication containing journalistic material.(4) For the purposes of determining whether a communication contains material acquired for the purposes of journalism, it does not matter whether the material has been acquired for those purposes by the sender or recipient of the communication or by some other person.(5) For the purposes of this section—(a) material is not to be regarded as created or acquired for the purposes of journalism if it is created or acquired with the intention of furthering a criminal purpose, and(b) material which a person intends to be used to further such a purpose is not to be regarded as intended to be used for the purposes of journalism.Confidential journalistic material(6) “Confidential journalistic material” means—(a) in the case of material contained in a communication, journalistic material which the sender of the communication—(i) holds in confidence, or(ii) intends the recipient, or intended recipient, of the communication to hold in confidence;(b) in any other case, journalistic material which a person holds in confidence.(7) A person holds material in confidence for the purposes of this section if—(a) the person holds it subject to an express or implied undertaking to hold it in confidence, or (b) the person holds it subject to a restriction on disclosure or an obligation of secrecy contained in an enactment.”
“Confidential journalistic material | Section (General definitions: “journalistic material” etc.)(6) and (7)” |
“( ) section 218(2A),”
“( ) In subsection (3) “enactment” does not include any primary legislation passed or made after the end of the Session in which this Act is passed.”
“Security Service Act 1989
In section 1(5) of the Security Service Act 1989 (meaning of “prevention” and “detection”) for the words from “the provisions” to the end substitute “that Act”.”
Earl Howe
Main Page: Earl Howe (Conservative - Excepted Hereditary)Department Debates - View all Earl Howe's debates with the Ministry of Defence
Investigatory Powers Bill
Earl Howe ExcerptsWednesday 2nd November 2016
(8 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 68-I Marshalled list for consideration of Commons reasons (PDF, 78KB) - (1 Nov 2016)
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, we return to the regulation of the press and the outcome of the Leveson inquiry. Yesterday my right honourable friend the Secretary of State for Culture, Media and Sport launched a 10-week public consultation relating to Leveson part 2 and the commencement of Section 40 of the Crime and Courts Act. The consultation will give everyone with an interest in these matters an opportunity to have their say on this vital issue, which affects each and every one of us in this country. I hope noble Lords will welcome this announcement, which shows the Government’s commitment to addressing the issues and recommendations set out in the Leveson report in the most appropriate way.
Before we consider the ins and outs of press self-regulation, it is important that we all remember the context in which we are having this debate: the Investigatory Powers Bill. The Bill’s passage has been a long one, from its inception after three independent reviews, through pre-legislative scrutiny by three parliamentary committees to the thorough scrutiny subsequently applied by both Houses. The Government have recognised the need for consensus on legislation of this significance. They have listened and substantially changed the Bill in light of the scrutiny it has received. Both Houses have improved the Bill.
There is consensus on the need for the Bill. It is one of the most important pieces of legislation this Government will take forward. The Bill will provide a world-leading framework for the use of investigatory powers by law enforcement and the security and intelligence agencies. It will strengthen the safeguards for the use of those powers and it will create a powerful new body responsible for oversight of those powers.
I remind the House that the Bill replaces provisions in the Data Retention and Investigatory Powers Act 2014 that will sunset at the end of this year. The loss of those powers would pose a significant threat to the ability of law enforcement and the security and intelligence agencies to protect the public. I must therefore be clear: the Bill is important for our national security. The Government believe that there should be no delay in the passage of this important legislation.
Yesterday, the House of Commons considered the amendments put forward by this House which strengthened the safeguards in this important legislation and added clarity. It unanimously accepted them all. However, the Commons decisively rejected the amendments put forward in relation to regulation of the media—the press.
Lord Wallace of Tankerness (LD)
The noble Earl has made the point that we should have no delay in the passage of the Bill. If your Lordships’ House should in fact support the amendments tabled today in the name of the noble Baroness, Lady Hollins, and the Bill goes back to the other place, when would the other place intend to debate these amendments and when would we get the opportunity to debate them again? Will it be tonight or tomorrow?
Earl Howe
My Lords, it will not be that soon. My understanding is that it will not be until after the mini-Recess that we would come to debate these matters again, should the House support the noble Baroness.
Many honourable and right honourable Members in the other place spoke of how this vital Bill was not the place to consider the important, but unrelated, matter of the regulation of the press. They were right to do so. I say to the noble Baroness, Lady Hollins, that the issues she has raised are of critical importance. She herself was treated terribly by rogue elements of the media. As the Secretary of State for Culture, Media and Sport acknowledged yesterday in the other place, we know that in the past some elements of the press abused their position and ignored not only their own code of practice but the law. It was clear to all that there needed to be change.
However, a free press is also an essential component of a fully functioning democracy. The press should be able to tell the truth without fear or favour and to hold the powerful to account. A number of those who spoke in the debate in the other place yesterday made the point that the press self-regulatory landscape has changed significantly over the past four years, since the Leveson inquiry reported. It is therefore surely right that the Government now take stock, look at the changes which have already taken place and seek the views of all interested parties on the most effective way to ensure that the inexcusable practices which led to the Leveson inquiry being established in the first place can never happen again. I hope that noble Lords who have spoken so passionately on this issue will take the opportunity to contribute to the consultation in order that we get a broad range of evidence on which to make decisions.
I am the first to acknowledge that the issue of press regulation is a vitally important one. It deserves the fullest consideration, consultation and debate, but the Bill is vitally important as well. It will provide our law enforcement and security and intelligence agencies with the powers that they need to keep us all safe. I contend strongly that this Bill is simply not the place to try to regulate the press. Given the events of yesterday and the new consultation, which is the right way to approach the issue of press self-regulation, I invite noble Lords not to insist on the amendments that have been tabled and not to delay further the passage of this vital and world-leading legislation, which is essential to the safety and security of us all. I beg to move.
Baroness Hollins (CB)
My Lords, it is with regret that I return to my initiative one more time. I suggest that we do have time to consider it and I will speak to my Amendments E1, F1 and G1.
The issue at the heart of these debates remains simple: there was a widespread criminal conspiracy involving, it now turns out, more than one newspaper group. It lasted, and was covered up, for many years. It was combined with unexplained failures in police and prosecution action and allegations of political involvement in a cover-up. As a result, there was a public inquiry—the Leveson inquiry—and in 2013 a cross-party agreement was signed, committing Her Majesty’s Government to implementing its recommendations. As a result of that agreement, this House withdrew cross-party amendments to the Enterprise Bill and the Defamation Bill.
Lord Rosser (Lab)
The noble Baroness, Lady Hollins, has already reminded us of the cross-party agreement that committed the Government to implementing the recommendations of the Leveson inquiry. Unfortunately, the Government have not seen fit to commence Section 40 of the Crime and Courts Act 2013, even though, crucially, alongside the royal charter, Section 40 was designed to incentivise newspapers to join a recognised self-regulator. Yesterday the Government announced a public consultation on Section 40, despite the clear terms of the cross-party agreement.
There will of course be those who are suspicious of the Government’s reasons behind this consultation. Some may even feel that it is designed to give a cloak of respectability to a later decision to go back on the undertakings given and the cross-party agreement reached on Section 40. I do not intend to pursue that line. It is simply very odd for the Government now to commence consultation on whether in effect they should implement their own recent legislation, which was the subject of cross-party agreement, was passed by Parliament, and which still represents the will of Parliament. Is this to be a precedent and to become a feature, with the Government holding regular public consultations on whether they should implement legislation passed by Parliament? Where will it all end?
By the way, I do not share the view that there is not still time to resolve this matter and still ensure the very necessary and vital passage of the Bill within the required time limit. My party, with others, has played a major role in improving it considerably during its passage through Parliament. We will support the amendment moved by the noble Baroness, Lady Hollins, if it is put to a vote. There is no reason not to honour undertakings given and cross-party agreements reached on Section 40.
Earl Howe
My Lords, I first say to those who have supported the amendments in the name of the noble Baroness that I acknowledge the strength of feeling in the House on this emotive issue. As I said in my opening remarks, the Government know how important these matters are to everybody. We need a robust and workable system for media self-regulation, and resolving that is in everybody’s interest. However, I am afraid that I remain of the opinion that the Bill is not the means to achieve that. Of course I agree with the noble Lord, Lord Paddick, that the noble Baroness’s amendments are procedurally in order; that has never been in question. However, first, the scope of the Bill means it cannot do this subject justice. The amendments we are considering today concern only interception of communications and would not necessarily sit well with whatever broader solution is to follow. Secondly, and more importantly, the public consultation which the Secretary of State for Culture, Media and Sport announced yesterday provides a means for a reasoned, informed and considered public debate—
Lord Strasburger (LD)
I thank the noble Earl for giving way. I would like to share with him a direct quotation from one of the six members of the Leveson inquiry—someone with whom I spoke this morning. He said, “The consultation announced this week is just a shabby stunt, probably concocted by Paul Dacre, to defer the betrayal of the victims of press abuse—past and future—until this Bill has been safely put to bed”. I would like to offer the noble Earl an opportunity to refute that charge.
Earl Howe
My Lords, I repudiate it completely. The Government have been clear about the timescale of the consultation and have committed to respond in a timely manner. We are taking this matter with proper seriousness. It is important that everyone has an opportunity to take on board and reflect on the changes that have occurred in the years since Lord Justice Leveson made his recommendations. I say again to the noble Lord, Lord Paddick—
Lord Beith (LD)
Just to clarify this matter, can the Minister tell us when he was told that the Government were launching a consultation on Section 40?
Earl Howe
I was made aware of it at the beginning of the week, but I am also aware that it was in gestation long before that.
I say to the noble Lord, Lord Paddick, that there is no mandatory period for a public consultation. The Cabinet Office guidelines say that there must be a proportionate amount of time, and I think 10 weeks gives everybody time to look properly at the issues and to submit their views to government. In that light, and for all the reasons I rehearsed earlier, I respectfully ask your Lordships to allow the Bill to pass without these amendments.
Earl Howe
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Investigatory Powers Bill
Earl Howe ExcerptsWednesday 16th November 2016
(7 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 70-I Motion to be moved on consideration of Commons reasons (PDF, 76KB) - (15 Nov 2016)
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I will not detain the House for long. I want merely to note my gratitude to the noble Baroness, Lady Hollins, for choosing not to press her amendments on press regulation again today. Her efforts and those of her supporters have successfully raised the profile of this issue and made a clear signal of her intent. She can rest assured that this has not gone unnoticed by the Government. I say that with due emphasis: the proof of it lies in the public consultation on this issue announced by my right honourable friend the Secretary of State for Culture, Media and Sport. That consultation provides, in my submission, the right means for interested individuals and groups—including, I trust, the noble Baroness, Lady Hollins, and other noble Lords—to have their say. It is a serious consultation, designed to take the process forward in a considered fashion. The Government have committed to respond promptly, following its conclusion.
Therefore, in moving this Motion, I hope that noble Lords who supported the noble Baroness, Lady Hollins, at earlier stages will recognise that their efforts and their arguments on these matters have not been wasted. I beg to move.
Lord Lipsey (Lab)
My Lords, the Commons has spoken and we must, as usual, bow the knee, even if it took us twice to get round to it this time. I take some consolation from what the Minister said, because at least the consultation document is something concrete which has an end date. However, we know that Governments can take an awfully long time after the end date of consultations deciding and announcing what they are going to do, and the present situation is very unsatisfactory. Section 40 sits there in the ether, with nobody knowing whether it is in or out, and we get rumours in the papers about the Government’s purported attitude. This is not how this matter should be dealt with; it should be dealt with quickly.
If anyone thinks there is no problem now with the press post-IPSO, they should read the coverage of what has happened to poor Prince Harry and his girlfriend. With the privacy issues involved in that, do they really feel that this shows—although there are, no doubt, two sides to the case—that the press has put its badnesses from the past behind it? I submit that they should not. This is a matter that requires urgent treatment—although I agree, not in the Bill.
Lord Rosser (Lab)
I congratulate the noble Baroness, Lady Hollins, on pressing this issue over a lengthy period with such determination and vigour. I ought to set out our position. There is inevitably a strong feeling that the Government are seeking a means to go back on the cross-party agreement, the undertakings given to victims and their commitment to implement Section 40 of the Crime and Courts Act 2013. In the Commons yesterday, the Solicitor-General rather gave the game away when he said that the consultation will ask whether Section 40 should be fully commenced, repealed or kept under review. Many fear that the consultation will prove to be a sham. Governments do not suddenly decide to hold a consultation on repealing recent legislation that has not yet been implemented unless that is something they would be happy to do. I suggest that the Minister knows that only too well. I suspect he may well choose to deny that, but the proof of the pudding will be in the outcome of this hastily organised consultation.
The question today is about the stance to take on the Government’s Motion. The noble Baroness, Lady Hollins, has indicated her position—at least, the Minister has done it for her—and it is one with which we agree. Two matters in particular need to be considered. One is the impact on the progress of the Bill. In our most recent discussion of this issue, the Government sought to argue that carrying the amendments concerned could place national security at risk, because it would delay the implementation of the Bill when there is a deadline, in a few weeks’ time, by which it needs to be passed. However, the Government destroyed their argument about a risk to national security by taking longer than they needed over scheduling consideration of our amendments in the Commons. If the Government seriously thought that national security was being put at risk, they would have had the Lords’ amendments considered by the Commons much sooner than they did. However, we are now that much closer to the deadline. Since we support the Bill we do not wish to start raising credible doubts over whether it will become an Act within the required timescale.
The second matter concerns the role of this House. This is usually described as inviting the Commons, the elected House, where deemed appropriate, to think again about aspects of or gaps in proposed legislation. We have done that twice in respect of the issue we are considering again today, and the Commons has twice declined to accept our view. This House has carried out its role and its responsibility.
In view of that, while we will continue to pursue this matter and the Government’s actions, like the noble Baroness, Lady Hollins, we do not believe that we should continue to do so through the medium of insisting on the amendments to the Bill that have previously been carried.
Earl Howe
My Lords, I am grateful for the contributions made from all quarters of the House. I will comment briefly on the consultation.
The consultation is a serious effort to canvas opinion. This is a difficult issue. There is no consensus around Section 40 implementation. We want to find a model for self-regulation that has broad support and works in practice. As well as having a responsibility to the victims, the Government have a responsibility to make sure that we have, as the noble Lord, Lord Myners, has correctly put it, a vibrant and sustainable press, particularly at the local level. We want to gather the evidence through a proper process, better to understand the potential impacts and explore options for next steps.
I and the Government believe that a consultation period of 10 weeks is appropriate and right. This is enough time to enable those who want to comment to do so, and we look forward to that process commencing.