Investigatory Powers Bill (Fifteenth sitting)

John Hayes Excerpts

Committee Debate: 15th sitting: House of Commons
Tuesday 3rd May 2016 Public Bill Committees

[Keir Starmer (Holborn and St Pancras) (Lab)]

The clause introduces schedule 8. I seek an assurance for the record from the Minister, but if it is not convenient to deal with this point now, it can be dealt with in some other way. Schedule 8 deals with the supplementary provisions for combined warrants. Having been through it, I think its effect is that any of the conditions necessary for any single warrant will apply notwithstanding that there is a combined warrant—in other words, none of the safeguards is lost by virtue of the combination—and the duration of the shortest warrant will apply. I am pretty sure that that is the intention, but it would be helpful to have that to confirmed for the record, so that we are clear that none of the safeguards is lost when warrants are combined.

[The Minister for Security (Mr John Hayes)]

With brevity that I know you will welcome, Ms Dorries, I can say that that is certainly so.

Question put and agreed to.

Clause 212 accordingly ordered to stand part of the Bill.

Schedule 8 agreed to.

Clause 213

Payments towards certain compliance costs

[Keir Starmer]

I beg to move amendment 844, in clause 213, page 165, line 26, leave out subsection (6) and insert—

“(6) The appropriate contribution shall represent the full amount of the relevant costs, subject to any audit process under subsection (4)”.

This amendment would ensure that the Government meets 100% of the compliance costs and that there is full cost recovery for Communication Service Providers (CSPs) implementing the legislation.

It is a pleasure to serve under your chairmanship, Ms Dorries. The amendment speaks for itself, I think. The clause deals with payments towards certain compliance costs and subsection (1) deals with appropriate contributions. As the Committee will know, there has been real concern about what the cost of compliance will be for those called upon to comply and what contribution they will receive toward their relevant costs. The clause allows for “an appropriate contribution”. The amendment would ensure that the Government met 100% of the compliance costs and there was full cost recovery for communication service providers implementing the legislation..

There is concern among providers about what they will be expected to do by way of compliance and what the cost will be. It may be convenient for the Minister to deal with the estimated costs, because £170 million was mentioned at one stage but I am not sure that that is a final figure as far as the Government are concerned.

[Mr Hayes]

The amendment is designed to ensure that the Government’s commitment to cost recovery for providers is explicitly provided for in the Bill. The hon. and learned Gentleman is right to raise this issue again, reflecting what we heard during the witness session when we debated the issue in part. In his evidence, Mark Hughes said he was aware that

“Under the proposals in the Bill—the Home Secretary has made reference to it—we would recover our costs from the Home Office, as we have done under existing legislation.”

He went on to say that

“the proposed regime is more sensible as long as it is clear that we will recover 100% of our costs.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 45-46, Q126.]

And I am clear, quoting the Home Secretary, that

“100% of the compliance costs will be met by the Government.”—[Official Report, 15 March 2016; Vol. 607, c. 821.]

The hon. and learned Gentleman asks what that means in practice. The £174 million he mentioned is not a cap, but an estimate. It is dealt with in the impact assessment, and there is no cap in the impact assessment. We will meet costs such as they arise. We are determined to make sure that the Bill works and is not inhibited by any doubts about the cost of its implementation. Clearly, future Governments will inherit this legislation. It is worth emphasising that the current policy has not changed since the passage of the Regulation of Investigatory Powers Act 2000, so it has survived three Governments of different colours or combinations of colours—we used to be more rainbow-like than we are now, which is actually quite welcome, by the way. We are clear that 100% means what it says.

Above and beyond that—the hon. and leaned Gentleman did not ask for this, but I will add it—we need to be clear that the providers are consulted on any changes to the cost model and that they will be able to seek review of any variation to the notice that affects the level of their contribution. To sum up: we have an estimate, not a cap; a determination that 100% means 100%; a willingness to have a proper input into this; and an assurance—which I think is what the hon. and leaned Gentleman really seeks—that the Government will cover the costs so that the Bill does what it should.

[Christian Matheson (City of Chester) (Lab)]

What a great reassurance it is to see you in the Chair, Ms Dorries. I will be very brief. I welcome the contributions of my hon. and learned Friend the Member for Holborn and St Pancras and the Minister for Security. As Committee members know, I have been banging on about this issue—

--- Later in debate ---

[Mr Hayes]

Yes.

[Christian Matheson]

—rather tediously. The Minister says, “Yes,” but I have to point out that he said it before I said “rather tediously”. I welcome the Minister’s assurance as I have been concerned about communications service provider security since Second Reading. Will the Government consider providing security advice and testing for the smaller communications service providers, in addition to the financial contribution that they are making?

[Mr Hayes]

I will make only two points in reply to the hon. Gentleman. First, when he describes it as “banging on”, he understates his contribution. I see it more as informed, eloquent and sensible inquiry. Secondly, he is absolutely right that the small providers need to be fully involved at all stages. It may be fair to say that the bigger providers have the mechanisms to implement the requirements for data retention more straightforwardly, so we need to ensure that that does not mean that small providers are in any way disadvantaged. I acknowledge that point, and he is right to make it elegantly. He should never apologise—at least to me—for banging on about anything.

[Keir Starmer]

I am grateful to the Minister for setting out that assurance for the record. That will reassure those who are concerned about this issue. In those circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 213 ordered to stand part of the Bill.

Clauses 214 and 215 ordered to stand part of the Bill.

Clause 216

National security notices

--- Later in debate ---

[The Solicitor General]

I have been interested in the clause for a while, because there are issues about what “relevant notice” means, for example. I assure the hon. and learned Gentleman that that applies only to technical capability notices, not national security notices. I will carefully consider how we can make that absolutely clear, and in that context I will have another look at the how the clause is worded. I want to put beyond any doubt the fact that the clause relates only to a technical capability notice and does not relate to third parties. That has been an important undertaking that we have given.

[Mr Hayes]

Deliberating on the interesting discourse that has taken place between the Solicitor General and the hon. and learned Member for Holborn and St Pancras, I take the point that the hon. and learned Gentleman makes about necessity and proportionality running as a theme throughout the Bill. My hon. and learned Friend the Solicitor General is of course right that these are preliminary measures, and therefore once an outcome that has been tested for proportionality has been reached, that will not be a problem. I say to him that there is an argument for taking that into account and making it even clearer, either in the supporting documentation or in the Bill.

[The Solicitor General]

I am grateful to my right hon. Friend, and I will do that.

Before I go further, I will deal with the point that the hon. and learned Member for Edinburgh South West made about Apple. My understanding is that the process will give her some reassurance. In that scenario, Apple, as the recipient of the notice, could refer it back to the Secretary of State, who in turn must then consult the technical advisory board and the IPC before deciding whether to proceed further with the notice. If the Secretary of State proceeded, it would then be judicable in the courts, which would determine whether the notice could be enforced. It is quite similar to the scenario that we discussed in the context of national security notices. I hope that gives her some assistance.

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[Joanna Cherry]

The SNP takes the same position as it did on the previous clause.

Question put and agreed to.

Clause 218 accordingly ordered to stand part of the Bill.

Clause 219

Variation and revocation of notices

[Mr Hayes]

I beg to move amendment 734, in clause 219, page 170, line 8, at end insert

“(and in the application of section 218(3) and (4) in relation to varying a relevant notice, references to the notice are to be read as references to the notice as varied).”

This is a technical amendment. Ms Dorries, I should have welcomed you to the Chair earlier, but I do so now. The amendment is uncontentious and makes a drafting correction to clause 219. On that basis, it should not cause the Committee any undue concern, and I move it in that spirit.

Amendment 734 agreed to.

Clause 219, as amended, ordered to stand part of the Bill.

Clause 220

Review by the Secretary of State

[Keir Starmer]

I beg to move amendment 851, in clause 220, page 170, line 31, leave out subsection (6) and insert—

‘(6) The Board must consider the technical requirements and the consequences, for the person who has made the reference and for others likely to be affected, of the notice so far as referred.”

This amendment would require the Technical Advisory Board to look at more than just an implementation of cost measure and instead examine the full costs of the notice.

Our discussions have already strayed on to clause 220. This short amendment is reasonably clear. Subsection (6) makes it clear that the technical advisory board, referred to in subsection (5)(a),

“must consider the technical requirements and the financial consequences, for the person who has made the reference, of the notice so far as referred.”

That is where the person served with the notice has referred the notice back to the Secretary of State, which then triggers a consultation exercise. The board must be consulted; subsection (6) sets out what the board must consider. The amendment is fairly self-explanatory; it would serve the limited purpose of requiring the technical advisory board to look at more than just the implementation of cost measure, and instead examine the full costs of the notice.

[Mr Hayes]

As the hon. and learned Gentleman said, the amendment would broaden the scope of the technical advisory board by requiring it to consider other matters as part of any review of the obligations imposed by the Secretary of State in a notice. Under the amendment, the board would be required to consider the consequences for others likely to be affected by the obligations imposed by a notice. That is understandable—I can see why the hon. and learned Gentleman tabled the amendment—but unnecessary.

The technical advisory board is essentially a committee of experts. It has a very specific role to play in advising the Secretary of State on cost and technical matters. That role is reflected in its membership: a group of experts drawn from communications service providers and from those entitled to apply for warrants and authorisations under the Bill. Such people are well placed to consider the technical requirements and the financial consequences. If they consider it appropriate, they may look beyond cost and technical feasibility, but those matters, rightly, are the board’s central purpose and are at the core of its work. The board is also required to consider evidence or representations made by communications service providers and must report its conclusions to them and to the Secretary of State.

In my view, responsibility for considering the broader effects of the notice on the communications service provider to whom it has been given should sit with the Investigatory Powers Commissioner. While it is absolutely right that the board considers both the technical aspects and the cost, the broader matters that the hon. and learned Gentleman is rightly concerned about should fall within the scope of the commissioner, as they do in the Bill. As part of any review of the obligations set out in the notice, the commissioner must report on the proportionality of those obligations; that will include an assessment of the consequences of the notice, both on the persons seeking the review and on anyone else affected—which is essentially the argument the hon. and learned Gentleman made for the amendment.

Furthermore, the clause requires the commissioner to seek out the views of the person who has received the notice, who will have the opportunity to raise any concerns about the effect of the notice with the commissioner for consideration; the commissioner must report his or her conclusions to that person and to the Secretary of State. Essentially, combining the role and responsibilities of the board with the role and responsibilities of the commissioner means that each of them will provide a function central to the hon. and learned Gentleman’s concerns, so the amendment is unnecessary. I should add that the commissioner is properly and well placed to consider the proportionality of the matter as a whole, after careful assessment. The amendment’s wording would introduce duplication and, frankly, a degree of ambiguity about the respective roles of the board and the commissioner and about what each of them is considering. With that reassurance, I hope the hon. and learned Gentleman will withdraw the amendment.

[Keir Starmer]

The Minister says that the Bill places no inhibition on the wider technical consequences looked at by the board, and that other consequences rightly come under the remit of the commissioner. I am grateful for that clarification; I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 852, in clause 220, page 171, leave out lines 1 and 2 and insert—

“(9) The Secretary of State may, after considering the conclusions of the Board and the Commissioner, and with approval of a Judicial Commissioner—”.—(Keir Starmer.)

This amendment would require judicial authorisation for these clauses and bring them in line with other parts of the bill.

Question put, That the amendment be made.

--- Later in debate ---

[Keir Starmer]

Yes, that is probably the way out of my dilemma, but really this is more for the record. I will not vote against clause 222, but that is not because I think it is preferable to new clause 23; I would like to have the new clause as well. We will reflect on how we deal with that apparent dilemma.

[Mr Hayes]

That was the most heartwarming qualified advocacy of an amendment that I have ever heard in Committee; I was quite touched by it. I could not help thinking that there must be countless Tory voters in Holborn and St Pancras who feel about the hon. and learned Gentleman as he feels about this clause. I know that he bathes in their generous acclamation on a daily basis. It was very decent of him to put his case in the way he did.

I will deal with the substance of the new clause and its purpose. The hon. and learned Gentleman is right that new clause 23 would replace the Government’s proposals for a review of the operation of the Act as set out in clause 222, and he is also right that the clause obliges the Secretary of State to report to Parliament on the operation of the Act within four to five years. He described the detail, and I will not tire Committee members by quoting it more specifically. The new clause proposes instead the appointment of an independent reviewer to report on the operation of the Act every five years, beginning five years after the Act is passed.

Where we find common cause is in thinking that both pre-legislative and post-legislative scrutiny are essential. One could make that argument for most legislation, but particularly for legislation in this field, for two reasons: first, its import; and, secondly, the changing circumstances that will doubtless apply, as regards both technology, which the Bill deals with expansively, and the threat we face. All we know about the changes that have taken place over recent years suggests that those changes will continue and may grow in character and speed.

I fully understand why the hon. and learned Gentleman wants the whole House to take a close look at these matters over time. Indeed, the Home Secretary, in her evidence to the Joint Committee on the draft Bill, said:

“As technology advances, it may be necessary to revisit the powers, the legislative framework and the safeguards that are available”.

That is eminently sensible, and something that the Government wholeheartedly support.

As I said, clause 222 provides for judicial review. The hon. and learned Gentleman did not mention it, but he will know that the Joint Committee looked at that, and said that

“the appropriate vehicle to do this would be a specially constituted joint committee of the two Houses. This work should begin within six months of the end of the fifth year after which the Bill is enacted. Although the appointment of such a committee would be a matter for the two Houses, a provision in the Bill would provide a clear mandate and guarantee the timescale for this review.”

The Joint Committee gave that quite careful consideration. The members of this Committee who were also members of that one will recall that they did so because of the shared determination, which the hon. and learned Gentleman has articulated well, that we should not assume that as time goes on we will not need to be reasonably flexible about the application of the powers.

The Solicitor General made a point about providing legislation that looks as far into the future as possible. Certainly, the purpose of the Bill is to not only draw existing legislation into a single place but, as far as one reasonably can, prepare for the future. However, in doing so, it is important to be mindful of what the Joint Committee said, reflecting the Home Secretary’s evidence.

The hon. and learned Member for Holborn and St Pancras will know that the Joint Committee went on to recognise that the Government cannot, in statute, require Parliament to appoint a post-legislative scrutiny Committee. Let me explain that a little more. Ms Dorries, as you will understand with your experience in the House, it is not for the Government to say what Select Committees might look at over time. It certainly would not be for the Government to dictate to the Intelligence and Security Committee, for example, how it should regard or review the legislation within its scope or purview. It would be a dangerous precedent to set to say that any particular Select Committee should, statutorily, consider matters at a particular point in time, or in a particular way.

The clause says that the report should take account of any other report on the operation of the Act, mindful of what I have just described—that is, that the ISC, other Select Committees, or Committees of both Houses could bring evidence to bear that would inform that review. In essence, it would be a matter for Parliament to decide precisely what was looked at and when, within the confines determined in the Bill, but it is essential that the Secretary of State is missioned to report on the Bill’s implementation in the timetable described. That is something that legislation can quite properly do; it both gives all kinds of powers to the Secretary of State, and confirms those powers.

While I can see why the hon. and learned Gentleman supports the new clause, it is unnecessary, not because of the intent, but because of the detail. Essentially, we are offering two different models in order to achieve the same end. A parliamentary Committee would be just as independent as a separately appointed reviewer—and it would avoid the argument, which I know Opposition Members would be quick to have, about who should be responsible for appointing the reviewer.

[Keir Starmer]

This may be blindingly obvious, and any Secretary of State, including the current one, would almost certainly take this into account anyway, but could we amend subsection (3) to make it absolutely clear that the Secretary of State must take into account reports of the independent reviewer in addition to those of Select Committees? While that is not precisely what the new clause would achieve, and while I am absolutely sure that any Secretary of State would do that in any event, it would weave in an element of the new clause’s intention. It would not presuppose that there would necessarily be a report, but if there were one, it would be taken into account.

[Mr Hayes]

I am not unsympathetic to that suggestion, but let me qualify that slightly. There is an argument to say that we would want another reviewer involved in the process, because what we want is as much empiricism as possible. We have neither the time nor the patience for a long debate about the philosophical character of empiricism, and I am not an empiricist, philosophically, but in terms of legislation, it matters. There is an argument for introducing still more independence into the process.

The hon. and learned Gentleman is right to say that, of course, the Secretary of State would want to take into account the views of all those in positions of authority who have taken a view on the Bill and its implementation and effects in her or his report. I certainly would not want to exclude from that consideration any of the authoritative reports published on the Bill. I think that probably meets the hon. and learned Gentleman halfway, and perhaps a little more than halfway.

Any parliamentary review would take evidence from a range of witnesses. It is, again, almost inconceivable that the independent reviewer would not be a key witness, as our current independent reviewer was to the Joint Committee and other Committees of the House. It would—again, as the Joint Committee did—be likely to appoint technical advisers, who would inform the process and work in concert with the ISC. While the Government support a post-legislative review of the Bill, that review should be conducted by Parliament—by legislators drawing on external expertise and evidence, as the Joint Committee recommended. I therefore invite hon. Members not to press the new clause to a vote.

[Joanna Cherry]

I will not press new clause 23 to a vote.

Question put and agreed to.

Clause 222 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Simon Kirby.)