Investigatory Powers Bill

Baroness Laing of Elderslie Excerpts

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Sir Alan Duncan]

May I just say—[Interruption.]

[Madam Deputy Speaker (Mrs Eleanor Laing)]

Order. We will listen to Sir Alan Duncan.

[Sir Alan Duncan]

May I just say to the hon. Lady and her hon. Friends that there was no intention whatsoever to be patronising? If she wants to take it in that vein, may I apologise and do so graciously? Our view is simply that bulk interception and bulk powers involve a poor use of the word “bulk”. The intrusion on the individual compared with the collective gathering of information is misunderstood in many cases. That is our point, and I hope that she can accept it in that spirit.

--- Later in debate ---

[Stephen McPartland]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Mrs Eleanor Laing)]

With this it will be convenient to discuss the following:

New clause 19—Local authority authorisations: notification of chief executive—

“Where, on an application under sections 66 to 69, the relevant judicial authority approves an authorisation (including a Judicial Commissioner approval by order under section 68), the designated senior officer must notify the chief executive of the local authority, or subscribing authority, of that approval, or those approvals as the case may be, prior to that authorisation taking effect.”

Amendment 320, in clause 53, page 42, leave out lines 14 and 15 and insert

“Subsection (2) applies if a designated senior officer of a relevant public authority considers—

“(a) that a Judicial Commissioner may, on an application made by a designated senior officer at a relevant public authority, issue a communications data access authorisation where the Judicial Commissioner considers—”.

See amendment 327.

Amendment 321, page 42, line 21, leave out paragraph (b)(ii).

See amendment 327.

Amendment 322, page 42, line 26, leave out

“The designated senior officer may authorise any officer of the authority to”

and insert

“A communications data access authorisation may authorise the designated senior officer or a telecommunications operator to”.

See amendment 327.

Amendment 323, page 42, line 39, leave out “authorised officer” and insert “designated senior officer”.

See amendment 327.

Amendment 286, page 43, line 39, after “detecting”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 287, page 43, line 39, after second “preventing”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 324, page 43, line 41, leave out paragraphs (c) to (e).

See amendment 327.

Amendment 288, page 44, line 1, after first “or”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 289, page 44, line 1, after “any”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 290, page 44, line 2, after “any”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 291, page 44, line 2, after third “or”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 325, page 44, line 13, at end insert—

“(7A) An authorisation may be considered necessary as mentioned in subsection (7)(b) or (7)(f) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed.”

See amendment 327.

Amendment 292, page 44, line 18, at end insert—

“(9) Serious crime in subsection (7)(b) above means—

(a) any crime where a person guilty of the offence is liable on conviction to imprisonment for a term of imprisonment of [a maximum of] 6 months or more; or

(b) a crime which causes serious damage to a person’s physical or mental health.”

This amendment defines the higher threshold, inserted by other amendments to Clause 53, for accessing communications data.

Amendment 326, in clause 54, page 44, line 19, leave out clause 54.

See amendment 327.

Amendment 13,  page 44, line 28, leave out subsection (3)(b) and insert—

“(b) the investigation or operation concerned is one where there is an exceptional need, in the interests of national security, to keep knowledge of it to an absolute minimum,

(ba) there is an opportunity to obtain information where—

(i) the opportunity is rare,

(ii) the time to act is short, and

(iii) the need to obtain the information is significant and in the interests of national security, or”.

On behalf of the Intelligence and Security Committee of Parliament, to amend the Bill to ensure that the exceptional national security-related circumstances under which there does not need to be a separation between those requesting and those authorising requests for communications data, is narrowly drawn.

Amendment 293, page 45, line 13, at end insert—

“(7) For the avoidance of doubt, an internet connection record does not include the content of any communication.”

An amendment to clarify the description of internet connection records.

Amendment 327, in clause 55, page 45, line 16, leave out paragraph (a).

Amendment 4, page 46, line 40, leave out clause 58.

These amendments provide that in order to access communications data, a relevant public authority must seek a warrant from a Judicial Commissioner rather than undertake a system of internal authorisation. These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising communications data acquisition.

Amendment 164, in clause 58, page 46, line 41, leave out “maintain”.

See amendment 163.

Amendment 165, page 46, line 41, leave out “operate”.

See amendment 163.

Amendment 166, page 47, line 1, after “officer” insert “in exceptional circumstances”.

This amendment restricts the use of the filter to exceptional circumstances. This will ensure that the use of the filter does not become routine practice or the default mechanism for obtaining communications data.

Amendment 161, page 47, line 7, leave out “arrangements” and insert “regulations”.

See amendment 163.

Amendment 167, page 47, line 18, at end insert—

“(c) obtaining the approval of a Judicial Commissioner to the filtering regulations in the same way as if the data was to be obtained by a targeted interception warrant as set out in this Act.”

This amendment requires use of the filtering arrangements to obtain data to be approved by a Judicial Commissioner. Filtering requires higher authorisation standard, as it has much greater powers to detect across many datasets and with high efficiency, being more akin to bulk acquisition than to individual requests for data.

Amendment 168, page 47, line 19, leave out subsection 3.

This amendment stops the user of the filter for general purposes - such as support, maintenance, oversight, operation or administration of the arrangements - not directly related to the core investigative functions of public bodies. It also removes the use of the filter to support the general oversight functions of the Investigatory Powers Commission.

Amendment 162, page 47, line 19, leave out “arrangements” and insert “regulations”.

See amendment 163.

Amendment 163, page 47, line 27, leave out “arrangements” and insert “regulations”.

These amendments would make the filtering arrangements to be governed by a statutory instrument subject to all normal transparency and processes of judicial review.

Amendment 169, page 47, line 32, leave out “must consult” and insert

“shall obtain the prior approval of”.

This amendment creates a duty to obtain prior approval from the Commissioner for the filtering system. By asking the Commissioner for prior approval of any plans, the assessment of necessity and proportionality would be much more likely to be robust. Any abuse and expansion of scope and abilities of data mining would be more likely to be restrained. The Commissioner would also have the ability to ensure that requirements they might seek are properly considered at the start.

Amendment 170, page 47, line 35, at end insert—

“(5A) Nothing in this section shall be used in respect of information which can be reasonably obtained by any other means under this Act.

(5B) Nothing in this section shall be used for the bulk collection of information.

(5C) The powers under this section shall only be used by the Secretary of State when no other power under this Act or other statute can achieve the same objective.”

This amendment restricts the use of the filter to those purposes the government has put forward. Given the lack of clarity on what the filtering arrangements are and whether they will become the normal way to acquire communications data of any type, this amendment seeks to restrain the power so that it is used as narrowly as possible.

Amendment 171, page 47, line 35, at end insert—

“(5A) The Secretary of State shall at least once a year make a report to Parliament detailing the filtering arrangements made under this clause.”

This amendment would require the Secretary of State to make an annual report to Parliament explaining what the filtering arrangements consisted of and were being used for. This would improve public scrutiny and reinforce the provision in clause 58(4).

Amendment 5, page 47, line 36, leave out clause 59.

Amendment 6, page 48, line 16, leave out clause 60.

Amendment 172, in clause 60, page 49, line 29, at end insert—

“(10) All filtering arrangements under this Act shall not endure more than six months.

(11) The Secretary of State shall not use any power under Part 3 of this Act unless such power cannot be exercised under any other statutory provision.

(12) The Secretary of State shall ensure that the filtering arrangements are always used exceptionally and with regard to privacy rights.

(13) The Secretary of State shall from time to time consider the proportionality and necessity of all filtering arrangements in place.

(14) The Secretary of State shall terminate any filtering arrangements which are not proportionate or necessary.”

This amendment requires filtering arrangements to be renewed every six months; makes them a power of last resort; requires assessment of necessity and proportionality; requires termination of arrangements which are not truly needed.

Government amendments 49 and 50.

Amendment 143, in clause 68, page 54, line 14, leave out “not”.

Amendment 144, page 54, line 15, at end insert

“unless an application without such notice is required in order to avoid prejudice to the investigation.”

Amendment 145, page 54, line 15, at end insert—

“( ) Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply to an application for an order under this section as if it were an application for an order under that Schedule.”

This amendment seeks to ensure that the same level of protection is provided for journalists’ sources under the Bill as is currently provided in PACE.

Government amendments 51 and 52.

Amendment 300, in clause 73, page 58, line 33, at end insert—

“(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”

An amendment to introduce a public interest defence for disclosures regarding the obtaining of communications data.

Amendment 207, page 205, line 6, leave out schedule 4.

New clause 26—Retention of communications data—

“An operator who has not been designated as the operator of an electronic communications network or service according to section 34 of the Communications Act 2003; or whose service has fewer than 50,000 subscribers, shall not be required to comply with a retention notice under Clause 78.”

The new clause excludes the providers of rural or community access communications services and small service providers from the obligation to collect and retain data, in accordance with policy statements made by the Home Office.

Amendment 328, in clause 78, page 61, line 5, leave out “Secretary of State” and insert “Judicial Commissioner”,

See amendment 350.

Amendment 329, page 61, line 5, after second ““notice”)” insert

“on an application made by a designated senior officer at a relevant public authority”.

See amendment 350.

Amendment 330, page 61, line 7, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 331, page 61, line 9, at end insert—

“(1A) A notice may be considered necessary only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed in relation to the grounds falling within section 53(7).”

See amendment 350.

Amendment 332, page 61, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 3, page 62, line 22, leave out “therefore includes, in particular” and insert “does not include”.

Amendment 294, page 62, line 23, at end insert—

“(10) A retention notice must not require any data which is, or can only be obtained by processing, an internet connection record to be retained for any purpose other than the purpose specified in section 54(4).”

An amendment to restrict the retention of internet connection records.

Amendment 333, in clause 79, page 62, line 26, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 334, page 62, line 35, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 336, in clause 80, page 62, line 40, leave out “Secretary of State” and insert “Judicial Commissioner” on both occasions.

See amendment 350.

Amendment 337, page 63, line 7, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 338, page 63, line 8, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 339, page 63, line 9, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 340, page 63, line 10, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 341, page 63, line 19, leave out “Secretary of State” and insert “designated senior officer at a relevant public authority”.

See amendment 350.

Amendment 342, page 63, line 24, leave out “Secretary of State” and insert “designated senior officer at a relevant public authority”.

See amendment 350.

Amendment 343, page 63, line 25, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 470, page 63, line 31, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 471, page 63, line 33, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 344, in clause 83, page 64, line 13, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 345, page 64, line 14, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 346, page 64, line 15, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 347, page 64, line 23, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 348, page 64, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 350, page 64, line 40, leave out “Secretary of State” and insert “Judicial Commissioner”.

These amendments provide that judicial authorisation is required for retention of communications data. These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising retention of communications data.

Amendment 301, in clause 84, page 65, line 26, at end insert—

“(4A) Subsections (2) and (3) do not apply to a disclosure made in the public interest.”

An amendment to introduce a public interest defence for disclosures regarding the retention of communications data.

New clause 15—Review of operational case for bulk powers—

“(1) The Secretary of State must appoint the independent reviewer of terrorism legislation to review the operational case for the bulk powers contained in Parts 6 and 7 of this Act.

(2) The independent reviewer must, in particular, consider the justification for the powers in the Act relating to—

(a) bulk interception,

(b) bulk acquisition,

(c) bulk equipment interference, and

(d) bulk personal datasets.

(3) The independent reviewer must, so far as reasonably practicable, complete the review before 30 November 2016.

(4) The independent reviewer must send to the Prime Minister a report on the outcome of the review as soon as reasonably practicable after completing the review.

(5) On receiving a report under subsection (4), the Prime Minister must lay a copy of it before Parliament together with a statement as to whether any matter has been excluded from that copy under subsection (6).

(6) If it appears to the Prime Minister that the publication of any matter in a report under subsection (4) would be contrary to the public interest or prejudicial to national security, the Prime Minister may exclude the matter from the copy of the report laid before Parliament.

(7) The Secretary of State may pay to the independent reviewer—

(a) expenses incurred in carrying out the functions of the independent reviewer under this section, and

(b) such allowances as the Secretary of State determines.

(8) The independent reviewer shall complete further reviews on a five-yearly basis and the provisions of this section other than subsection (3) shall apply.

(9) In this section ‘the independent reviewer of terrorism legislation’ means the person appointed under section 36(1) of the Terrorism Act 2006 (and ‘independent reviewer’ is to be read accordingly).”

This amendment provides for an independent review of the operational case for the bulk powers in the Bill, and further periodic reviews, to be undertaken by the independent reviewer of terrorism legislation.

New clause 17—Review of the Operation of this Act—

“(1) The Secretary of State shall appoint an Independent Reviewer to prepare the first report on the operation of this Act within a period of 6 months beginning with the end of the initial period.

(2) In subsection (1) ‘the initial period’ is the period of 1 years and 6 months beginning with the day on which this Act is passed.

(3) Subsequent reports will be prepared every 2 years after the first report in subsection (1).

(4) A copy of the report is to be laid before Parliament, with provision made for a debate on the floor of both Houses and then approved by resolution of each House.”

Because the Bill deals with National Security and changing technological capabilities, it should be subject to greater scrutiny by both Houses. This amendment will call for an Independent Review to take place and be approved by Parliament within 2 years of the Bill becoming law and then every two years.

New clause 22—Primacy of judicial commissioner’s approval—

“No authorisation sought for a warrant to intercept or obtain or examine primary or secondary communications data, whether targeted or in bulk, under this Act may be considered by a Minister unless it has first been approved by a Judicial Commissioner.”

New clause 25—Review of the Operation of this Act—

“(1) The Secretary of State shall appoint an Independent Reviewer to prepare the first report on the operation of this Act within a period of 6 months beginning with the end of the initial period.

(2) In subsection (1) ‘the initial period’ is the period of 4 years and 6 months beginning with the passage of this Act.

(3) Subsequent reports will be prepared every 5 years after the first report in subsection (1).

(4) Any report prepared by the Independent Reviewer must be laid before Parliament by the Secretary of State as soon as the Secretary of State is satisfied it will not prejudice any criminal proceedings.

(5) The Secretary of State may, out of money provided by Parliament, pay a person appointed under subsection (1), both his expenses and also such allowances as the Secretary of State determines.”

This new clause provides that the review of the operation of the Act shall be carried out by an Independent Reviewer.

New clause 27—Protection for journalistic sources, materials and activities—

“(1) Save in the exceptional circumstances identified in subsection (2), the regimes provided for by Parts 2 to 7 may not be used to access, obtain, record, hold, consider, analyse, disclose or otherwise deal with information, material or data—

(a) of, or concerning the activities of, journalists, or

(b) if the purpose of so doing is to obtain information identifying a journalistic source.

(2) The exceptional circumstances referred to in subsection (1) are—

(a) the case is one of great emergency,

(b) immediate action is necessary, and

(c) the relevant investigatory powers under the regimes provided by Parts 2 to 7 can be used lawfully having regard to the provisions thereof.

(3) In any case where the regimes provided for by Parts 2 to 7 are disapplied by subsection (1), any person who could otherwise have sought to use one of the investigatory powers specified therein may apply to a judge for an order allowing that person to access, obtain, record, hold, consider, analyse, disclose or otherwise deal with such information, material or data in a way provided for by Parts 2 to 7.

(4) An application for an order under subsection (3) shall be made on notice to the journalist or journalists affected unless the judge determines that an application without such notice is required in order to avoid prejudice to the investigation.

(5) Paragraphs 7 to 9 of Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply in relation to the service of a notice of application for an order under subsection (1) as if the application were for an order under Schedule 1 of the Police and Criminal Evidence Act 1984.

(6) Criminal Procedure Rules may make provision about proceedings under this section where the judge determines that an application without such notice is required.

(7) A judge may only make an order under subsection (3) if the person making the application has convincingly established that—

(a) the order is directed to one or more of the legitimate aims specified in Article 10.2 of the Convention,

(b) there is an overriding public interest necessitating the order,

(c) reasonable alternative measures to the order do not exist or have been exhausted, and

(d) the order is proportionate to the legitimate aim or aims being pursued.

(8) The costs of any application under subsection (3) and of anything done or to be done in pursuance of an order as a result of the application shall be in the discretion of the judge.

(9) In this section—

(a) ‘source’ means any person who provides information to a journalist;

(b) ‘information identifying a source’ includes—

(i) the name and personal data as well as voice and image of a source;

(ii) the factual circumstances of acquiring information from a source by a journalist;

(iii) the unpublished content of the information provided by a source to a journalist; and

(iv) personal data of journalists and their employers related to their professional work;

in so far as this is likely to lead to the identification of a source.

(c) ‘the Convention’ means the European Convention for the Protection of Human Rights and Fundamental Freedoms; and

(d) ‘judge’ means a circuit judge or judge of the High Court.”

Amendment 206, page 172, line 24, leave out clause 222.

See new clause 17.

Amendment 494, in clause 223, page 173, line 18, leave out paragraph (i) and insert—

“(i) is about an entity to which a telecommunications service is provided by that telecommunications operator and relates to the provision of that service,”.

This amendment clarifies that the definition of communications data should apply to the providers of the relevant telecommunication services, rather than allowing an organisation to be required to provide data about services it does not provide.

Amendment 496, in clause 225, page 177, line 27, at end insert—

“‘national security’” means the protection of the existence of the nation and its territorial integrity, or political independence against force or threat of force”.

This amendment would provide for a definition of national security under “General definitions”, to apply throughout the Bill.

Amendment 495, page 177, line 36, at end insert—

“‘professional legal adviser’ means a person who is—

(a) an Advocate

(b) a Barrister

(c) a Solicitor.”

This amendment provides a definition of a “professional legal Adviser” which is important for clarification in relation to Clauses 25, 100, 135 and 171.

[Stephen McPartland]

I speak in support of all the amendments that I have tabled in this group. First, new clause 18 and amendment 207 are designed to try to restrict the powers in the Bill to the intelligence agencies and law enforcement only. Schedule 4 currently includes the Food Standards Agency and the Gambling Commission, and I am not clear what evidence there is for including those organisations and granting them access to such intrusive powers when other organisations will not have that access.

The Bill gives incredibly wide-ranging powers and there is clear nervousness about that on both sides of the House. I completely respect the integrity of the security services and the police, but a lot of the fear seems to stem from the behaviour of some local authorities in the past and how they have used anti-terrorism powers to spy on people to see whether or not they have been recycling correctly and so on. As a result, those local authorities are not included in the Bill.

Let me give an example from Hertfordshire. The child protection unit of Hertfordshire County Council does not have access to communications data or the powers in the Bill in order to catch paedophiles, but the Gambling Commission and the Food Standards Agency would do so. I am unclear why a body that we would want to have access to such powers so that it can catch paedophiles and break up rings around the world cannot have access, when organisations such as the Gambling Commission or Food Standards Agency can have access.

I want to understand that difference. In the oral evidence sessions, when Ministers were questioning witnesses and when witnesses were providing evidence, there was a lot of talk about intelligence agencies, paedophilia and the problems in that regard. Ministers made it clear that a range of organisations had made robust cases to be included. The amendments are intended to tease out of Ministers why those cases were accepted when others were not. Frankly, I would much rather that Hertfordshire County Council’s child protection unit had access to some of the powers in the Bill than the Food Standards Agency, the Gambling Commission or some other organisation. The purpose of my amendment is to try to identify why we are where we are at the moment.