draft Regulation of Investigatory Powers (Interception of Communications: code of practice) order 2015 Draft Equipment Interference (Code of Practice) Order 2015

Keir Starmer Excerpts

Thursday 7th January 2016 General Committees

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

The Opposition welcome the codes and the tone and manner in which the debate has been opened by the Minister. I will start with some general propositions, the most obvious of which is this: the ability to intercept the communication of those who mean us harm is a vital tool in the fight against terrorism and serious crime that is available to the police and security services. I saw that for myself when I was Director of Public Prosecutions for five years. I worked closely with the police and security services, relying on the sort of intercept and data that the codes refer to on a daily basis in the fight against both terrorism and serious crime.

On the framework, the powers set out in the draft codes—the interception of communications and equipment interference, which is being put into a code for the first time—are among the most intrusive and therefore the most sensitive available. The need for strict adherence to the safeguards in the Regulation of Investigatory Powers Act is vital; it is those safeguards that allow the powers to be used. Whether the safeguards in the existing legislative framework are robust enough is a debate for yesterday, because the draft Investigatory Powers Bill is going through its various processes currently with the Joint Committee, and no doubt many of the issues discussed today will be equally if not more relevant in those debates. Given the legislation that we have and that we are existing under at the moment, it is welcome to have codes that give guidance to those who need to exercise such powers, and to ensure that, as far as possible, the safeguards are properly applied.

The Minister mentioned necessity and proportionality, which are key to the exercise of any of the powers referred to in the codes; they are, as the Minister says, at the heart. In that respect, I welcome the guidance in paragraph 3.6 of the interception of communications draft code and in paragraphs 2.6 and 2.7 of the equipment interference draft code, which spell out in practical terms how proportionality is to be applied. Having worked, before I was Director of Public Prosecutions, with the Police Service of Northern Ireland, I know that practical guidance to those on the ground as to how they assess necessity and proportionality is critical. It is well set out in those parts of the code, and that is welcome guidance not only for all of us and for the public to see, but for those charged with implementing the codes. In those paragraphs are the key principles that privacy must be balanced against the need for activity in operational terms, and the reminder, if it is needed for those exercising the powers, that actions should not be deemed proportionate simply because there is a potential threat to security. If that were the case, the proportionality test would be redundant.

Paragraphs 3.22 and 3.23 of the interception of communications draft code are welcome, because they make clear for the first time in a code that a

“communication remains in the course of its transmission regardless of whether the communication has previously been read, viewed or listened to.”

That central issue emerged in the investigations and prosecutions relating to allegations of hacking across various news bodies. At one stage, there was a lack of clarity about whether a communication that had already been listened to remained in the course of its transmission. That gave rise to a huge debate before and after the Leveson inquiry. It is welcome that the new code aligns the position in guidance with the approach suggested by Lord Justice Leveson, which in my opinion is the right approach.

[Mr Hayes]

So that I can reduce my closing remarks to the necessary length, which is short, I should say that the hon. and learned Gentleman is right that this is the first time that that has been put into the code.

[Keir Starmer]

I am grateful for that.

Regarding the remaining tricky or more complicated areas, I shall focus on legal professional privilege and the protection of communications involving confidential journalistic material and other confidential information. Before I do so, though, I highlight the point made by a number of respondents to the consultation on the equipment interference code. The Government’s response to the consultation summarises their point as saying that

“a code of practice was not a suitable vehicle for setting out the power to conduct equipment interference and that it should be provided for in primary legislation. This would offer an opportunity to have an open and transparent debate about the use of equipment interference by the Security and Intelligence agencies.”

That is a point well made in the consultation, although the Government’s response is inevitably constrained by the legislation that is currently in place. Nevertheless, it emphasises the need for a real debate on this issue as the draft Investigatory Powers Bill goes through its various stages.

I will not take up time by reminding the Committee of the importance of legal professional privilege, but the need for reform and further guidance under the code is absolutely clear. In that respect, probably the only quarrel I have with the Minister is that I am not sure that the new codes are simply about the Government doing their job properly. They were necessary as a result of the ruling in the Investigatory Powers Tribunal, which declared in February last year that the previous approach was not in accordance with article 8 of the European convention on human rights. That position was rightly conceded by the Government, because in that case the IPT ruled that

“the regime for the interception/obtaining, analysis, use, disclosure and destruction of legally privileged material has contravened Article 8 ECHR and was accordingly unlawful.”

It was therefore necessary, for the period that the current regime remains intact, to have further guidance to bring the approach into accordance with the IPT.

I remind the Committee that the previous code simply said that caseworkers

“should be alert to any intercept material which may be subject to legal privilege.”

It did not go on to state what steps should be taken if legally privileged material was identified. There was a deficiency there that the new code is intended to deal with.

Although they do not ring-fence legally privileged material, the new codes do provide much more detailed guidance, which, again, is welcome, particularly in paragraphs 4.5 to 4.25 of the interception of communications draft code and chapter 3 of the equipment interference draft code. I highlight the fact that the latter provides that, prior to any warrant being granted where interception of privileged information is likely, there must be an assessment of how likely it is that such information will be intercepted. So, first, there must be an assessment before the event. Secondly, when the interception of legally privileged information is intended, the threshold, as the Minister said, is that there must be

“exceptional and compelling circumstances that make the authorisation necessary.”

Thirdly, the code makes it clear that the threshold will be met when there is an

“imminent threat of death or serious injury or serious threat to national security”

but it is anticipated that such situations will be rare. In addition, the code states that any communication between lawyer and client or any third party for the purpose of actual or contemplated litigation

“must be presumed to be privileged unless the contrary is established”.

Those are three or four aspects in which the guidance is much sharper and clearer. Time will tell—in the limited life of such codes—whether the regime is robust enough. Over the coming weeks and months, we will obviously keep a beady eye on how matters progress. To some extent, however, such matters will be considered in greater detail as the Bill proceeds.

My only point at this stage is that there is a question mark over whether the protection in relation to dissemination is strong enough under the code. The code simply states that privileged information cannot be disseminated unless a legal adviser has been consulted on the lawfulness of such action and that “all reasonable steps” must be taken to ensure that “as far as practicable” authorities involved in legal proceedings are prevented from seeing privileged information relating to those proceedings. Why does the code not expressly prevent dissemination where legal advice has been received as to its unlawfulness? I accept, however, that that question is probably equally well suited to the forthcoming debate on the Bill.

Moving on, it is noticeable that the protection for journalistic material and other confidential information is a lot weaker than the protection for legally privileged material. In his report, “A Question of Trust”, David Anderson, the Government’s reviewer, points out:

“The Draft Interception Code sets out similar provisions in respect of journalistic or other confidential material but the threshold for access is not as high as that in respect of legal privilege.”

It is obviously a matter of some concern that there are two different regimes for protected information. This matter was raised in the consultation, and I remind the Committee that the News Media Association took the view that the current regulatory framework

“poses a threat to journalism, journalists and their sources”.

The new provisions in the code of course have a chequered history. The National Union of Journalists, in a joint statement with the Bar Council, said that

“access to professional data should be protected in law and should be subject to independent, judicial oversight. Using codes of practice—such as the draft code under RIPA—undermines the rule of law.”

To some extent, their plea is for a change in the law, which is hopefully now forthcoming. The general secretary of the NUJ said:

“The proposals contained in the existing RIPA code of practice simply do not offer the protection to journalists and to sources, and are in fact dangerously inadequate. New legislation is urgently needed—it is vital that judicial oversight is introduced to force police officers and other snoopers to apply to judges in a transparent process before surveillance powers against media and legal professionals can be considered.”

Finally, the Press Gazette and the Society of Editors said that the draft code provides

“wholly inadequate protection for journalists’ sources”

and demanded that communication between journalists and public officials be treated the same as privileged information.

I recognise that the target of some of those comments was new legislation rather than a different code and that the code can only go so far, but not to have aligned in the interim the protection for journalistic material and other confidential material with the protection now given in the code to legally privileged material is a missed opportunity.

[Suella Fernandes (Fareham) (Con)]

How would the hon. and learned Gentleman define “journalist” in this context given the plethora of people out there, from the occasional blogger to the editor of a mainstream broadsheet newspaper, who would self-describe as journalists?

[Keir Starmer]

That is a good question, and a difficult one to answer. I confronted it when I was Director of Public Prosecutions, because I had to issue guidance on how we would approach the prosecution of journalists. We took a broad view, on the basis that if the protection of journalists’ sources is to have any meaning, one cannot distinguish between different forms of journalism. It is simply not good enough to say that because the definition is difficult, the protection should not be afforded to any.

I acknowledge that it is difficult to define journalism. I gave it my best shot in the guidance that I published and took a broad approach, but I resist the notion that because it is difficult to delineate clearly the limits of what a journalist is, the long-standing and hard-won protection for journalists’ sources and other confidential information must yield to that difficulty. That is a dangerous path for us to go down. It is obvious and inevitable that the regime in this legislation will not involve the sort of judicial oversight that comes with the Police and Criminal Evidence Act 1984, which is a live issue in the public domain among journalists and others. As I said, I think that it is a missed opportunity, albeit for a relatively short period, not to have aligned the protections in the different sorts of protected category in the codes to give better protection to journalists, their sources and the confidential material with which they deal routinely.

There is, of course, much to focus on in the upcoming debate on the draft Investigatory Powers Bill. We welcome the codes and the tone and manner in which they have been put before the Committee. I have outlined the concerns, but we support the codes.

--- Later in debate ---

[Keir Starmer]

rose—

[Mr Hayes]

It may be that the hon. and learned Gentleman has anticipated what I am going to say, but I happily give way to him.

[Keir Starmer]

The point I was making was limited to dissemination where it has been established that material has been unlawfully obtained, as will happen in certain situations. My point is about the safeguard where, whatever the prior assessment, it transpires that legally privileged material has been captured and should not have been. The question was why in those circumstances there is not a prohibition on dissemination, rather than the assessment before the event.

[Mr Hayes]

I was going on to that point, but that would have deprived the hon. and learned Gentleman of his place in the sun, so I am glad that I did not. I was going to add that there are further safeguards on the retention and dissemination of confidential material that must apply when seeking and granting a warrant. In any case where confidential information is retained, there is a requirement for notification to the interception of communications commissioner.

The hon. and learned Gentleman is right that, although they are related, the acquisition, dissemination and retention are different issues, and each requires appropriate safeguards. He made a good, more general point, as did the former Secretary of State for Scotland, the right hon. Member for Orkney and Shetland, about the need to look at things again in light of the new legislation, and it is absolutely right that we do. I confirm, as they asked me to, that that will happen, but it would be inappropriate for the Government to say, “We will not do anything until then.” Unless the important cross-House Committee considering these things makes alarmingly radical recommendations or the Bill Committee in its proper scrutiny of these things forces the Minister to make radical changes, I do not anticipate extraordinary changes between what we see today and what we end up with. However, the hon. and learned Gentleman and the former Secretary of State for Scotland are both absolutely right that proper reconsideration is necessary in the context of that new legislation. It would be inappropriate not to do that. The hon. and learned Gentleman is right that we will look at such things in that way.

The hon. and learned Gentleman also raised the issue of journalists. There is a difference between journalists and lawyers in these terms, because commissioned lawyers retain for all kinds of purposes, many of which he was intimately familiar with in his previous life. My hon. Friend the Member for Fareham is right that these days defining a journalist is more complicated than defining a lawyer, but there is a good argument for applying the provisions I have just described around privacy and particularly sensitive or confidential information to those areas.

I met representatives of the National Union of Journalists in that context, and they put directly to me the case that the hon. and learned Gentleman described. It was right to hear that case. I am not insensitive to the argument, but equally we have probably got the balance about right in emphasising the need for confidentiality and the higher bar, without treating journalists in quite the same way as we treat lawyers.

I think I have covered most of the points that the hon. and learned Gentleman raised. I will sit down unless he wants to intervene on me to raise additional points.

[Keir Starmer]

indicated dissent.

[Mr Hayes]

Brevity, as you know, Ms Buck, is my middle name.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Regulation of Investigatory Powers (Interception of Communications: Code of Practice) Order 2015.

DRAFT EQUIPMENT INTERFERENCE (CODE OF PRACTICE) ORDER 2015

Resolved,

That the Committee has considered the draft Equipment Interference (Code of Practice) Order 2015.—(Mr John Hayes.)