Earl Howe
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Investigatory Powers Bill
Earl Howe ExcerptsMonday 17th October 2016
(7 years, 6 months 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.””