Investigatory Powers Bill

Lord Carlile of Berriew Excerpts

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Lord Paddick]

My Lords, I am saying that the American model provides significant safeguards, in that somebody represents the side of privacy and civil liberties in the argument; it is not simply a case of the security agencies’ side being put, as perhaps some might see in this country.

Unlike the previous amendment, this amendment does not seek to replace the Independent Reviewer of Terrorism Legislation. On the contrary, noble Lords will see that the independent reviewer must be consulted on the appointment of members of the board. This is complementary to, not a replacement for, the Independent Reviewer of Terrorism Legislation. The current reviewer, Mr David Anderson, has previously argued that the post of independent reviewer is under-resourced and that it does not cover a wide enough range of laws. He said:

“If appropriately staffed and directed by the Independent Reviewer, the proposed new body could sharpen that investigative function and increase its scope”.

I accept that Mr Anderson also has concerns, and no doubt my noble friend Lord Carlile of Berriew, his predecessor, will tell us that he too has concerns. However, it continues to be the view of the Liberal Democrats—

[Lord Carlile of Berriew (LD)]

My noble friend tempts me to rise at this stage because there should be no misunderstandings. Does he accept that David Anderson has made it absolutely clear that he is opposed to this provision?

[Lord Paddick]

My Lords, Mr Anderson has made statements in the past in which he has supported the idea, but I accept that he also has serious concerns about it.

--- Later in debate ---

[Lord Paddick]

I am very grateful to the noble Baroness. Yes, of course I understand that for the security agencies, at every point when they are deciding to apply for warrants or to carry out intrusive activities, civil liberties are at the forefront of their minds within the framework provided to them by the law.

I come back to the point that a form of this privacy and civil liberties board has been agreed by all sides and put into legislation, but the Government have not enacted it. This is a variation on what is already on the statute book, and something that all sides have previously considered and agreed to.

Throughout the debates on the Bill, the Government have maintained that it is world-leading legislation. I believe that it can be regarded as such only if the Privacy and Civil Liberties Board is a part of it. I beg to move.

[Lord Carlile of Berriew]

My Lords, I wonder whether we might first get what might be called “private grief” out of the way—that is, the difference between my view on this matter and that of my party’s Front Bench. If I run the risk of being accused of consistency on this, I am proud of it.

Let us start with the point that my noble friend made about the United States of America. Yes, the United States of America has the body he has described, but how effective is it? I wonder whether my noble friend has examined the Patriot Act and its consequences. It is a set of provisions that allows the American authorities to do what is unimaginable here; for example, at their own whim, to look up the credit card transactions of any citizen throughout the United States for any given period. I do not want to replicate that.

I want also to pick up on a point made very briefly but eloquently by the noble Baroness, Lady Manningham-Buller. This amendment, in my judgment, betrays a lack of confidence in the security services that is completely unjustified. Anyone who has ever looked properly at the way in which the security services have been managed, at least in recent times, or anyone who, like myself, has examined the behaviour of the security services in very difficult circumstances in Northern Ireland in recent times, will know that the management is extremely rigorous and does not need the help of an expensive and ill-conceived quango to ensure that its staff behave properly.

The risks to national security from the sloppy drafting of subsection (5) of the amendment are manifest. There is no provision here for the members of the board to be directly vetted. That means that whoever the members of the board were, they would be entitled under subsection (5)(a) of the amendment to have access to,

“all relevant material (including classified information) held by any government department or agency”.

Presumably it would be their opinion as to what was relevant. Indeed, they would be able to call as witnesses or take statements from,

“personnel of any department and agency”.

That is a provision completely unparalleled in our history.

Furthermore, this proposal usurps the powers of the Intelligence and Security Committee. There is nothing provided by the amendment that the Intelligence and Security Committee cannot at least reasonably do. The amendment clearly envisages that this will be a political board, but outside the control of Parliament, because it says that no more than three members should come from any single political party. It is a sort of freeloading, undisciplined version of the Intelligence and Security Committee, without the control of either the Executive or Parliament.

Also, it looks like a very expensive board, compared, at least, with the Independent Reviewer of Terrorism Legislation. Neither David Anderson, nor I as his predecessor, ever complained about our remuneration as independent reviewer, but it pales into insignificance by at least two noughts on the end compared with this unnecessary board.

Furthermore, such a board would duplicate not just the Intelligence and Security Committee, but all the additional provisions, some contained in welcome government amendments, that have been added to the Bill. I have been watching every detail of the Bill over its very long period of gestation. More information was given when the Bill was first tabled than on any other Bill I have ever known, including more information about the security services than we have ever seen in parliamentary papers. We will now have an independent reviewer, commissioners, judges—a whole panoply of people applying sound management and good judicial principles to the considerations that the board would vaguely look at. It is not even a civil liberties board: it is not what it says on the tin, because civil liberties are not merely connected with investigatory powers.

This proposal is a fudge and it is misleading. I apologise to my noble friends for saying so, but as I have said, I have been completely consistent about this. It is one of the worst proposals I have seen on national security that has ever been proposed to your Lordships’ House. I shall not support it, I hope that others among my noble friends will not support it, and I urge the House to reject it.

[Lord Rooker (Lab)]

My Lords, all I can say in response so far is thank heavens we do not have the coalition Government in power. I support entirely what we have just heard from the noble Lord, the former Independent Reviewer of Terrorism Legislation.

I will choose my words carefully. One of the things that is worth thinking about with legislation like this is that we have the Government today, but we are legislating; we are Parliament. How would the Opposition use this? When I look at my friends in opposition, frankly, I will support the Government to vote this down. I am not prepared to abstain on such a barmy and dangerous amendment, as the noble Lord just said.

I will not go through the amendment. In fact, the noble Lord who moved it did not go through it. He did not explain what it meant by “professional qualifications, achievements” and “public stature” for the appointments. It is preposterous and a nosy parker’s charter into investigatory powers because it does not talk about looking at things; it demands access to all material from an agency and requests information from any agency or government department. There is nothing about the staff of the body. Forget the fact it is envisaged that three out of five members of the board will be of the same political party—it is envisaged to be party political—there is nothing about the security aspects of the staff, let alone the vetting of the people.

It is not, as the amendment says, just about civil liberties. It is in many ways trying to second-guess the powers of the commissioners. It is trying to second-guess the Joint Committee on Human Rights and the parliamentary security committee. We should have nothing to do with it. I hope the noble Lord will think twice if he is thinking about calling a Division on this. They will be laughed out of court.

--- Later in debate ---

[Lord Mackay of Clashfern]

My Lords, it may be convenient for me to speak about my Amendment 55A, which seeks to amend the new clause proposed in Amendment 55. I approach the Bill on the basis that the security services should get what they require in order to perform their duties adequately for the safety of our country, but the degree to which those powers are given should affect only to a minimum the rights of citizens apart from the Bill. That seems a reasonable approach in looking at these provisions.

As the noble Baroness, Lady Hamwee, said, we are all grateful to the Minister for the amount of consideration he has given to this. I am sure that among the luminaries who were at the meeting yesterday, the noble Baroness would be included. I was not there, I am glad to say; I was at a separate meeting of less luminous people this afternoon.

There are two stages of dealing with privileged information. The first is the decision to make the interception. The provisions that have been put in place in that connection have been referred to, and I have no comment on them. There is a second stage, though, when the material produced by the interception is considered. There is room for a closer use of scrutiny in connection with that. Legal privilege extends to an application to a lawyer for advice and the advice given in consequence of that application. It is possible that, intertwined with those two, other material should arise. For example, the noble Lord, Lord Carlile, spoke in Committee about a lawyer who was handed a letter by a suspect to deliver, and the result of that was rather damaging to the investigation. I think it is clear that the delivery of a letter and the acceptance of that letter by the lawyer was not part of the application for advice or indeed of the advice given, and therefore it would not be covered by legal professional privilege.

I regard legal professional privilege as a fundamental right in our system, enabling a client to consult his solicitor with perfect freedom in relation to any matter on which he requires legal advice. The privilege applies to the application for advice and the advice given, but it extends no further. Therefore, once the interception has taken place, the material is there for consideration. I consider that however difficult it may be to judge in advance before you get the intercepted material, once you get the intercepted material there is scope for deciding to what extent legal professional privilege covers it. I consider that the Interception Commissioner has a very special position and power in relation to that. I therefore believe it is possible for him or her to separate out from the total material intercepted what is truly covered by legal professional privilege. My amendment is intended to permit that and to require that the matter covered by legal professional privilege should not be further used. That should be the principle that preserves our right to legal professional privilege.

The agencies and the Minister have explained that surrounding that may be factual material that is vital to the investigation. The example given is someone who says, “I’m going to Greece. Could I be extradited from Greece?”. The request for information is, “Could I be extradited from Greece?”, while the factual information is that he is going to Greece. If that is the case, I consider that the information about whether or not he can be extradited from Greece is covered by legal professional privilege but the information that says he is going to Greece is not. Therefore, in an edited version of the material, the Interception Commissioner could take out all that was covered by legal professional privilege and decide what use, if any, the remainder could be put to. That is perfectly in accordance with the doctrine of legal professional privilege.

To refer again to a point that the noble Lord, Lord Carlile, made in Committee, it is important that a lawyer should be able to tell his client about the protection. He should be able to tell him that, subject to the iniquity provision, the conference in connection with the request for advice and the giving of that advice is absolutely privileged, but of course it does not cover anything that might be said in addition to that.

It is also possible that the Interception Commissioner might be able, in addition to that kind of separation and editing, to consider whether inferences can be drawn from the way in which the advice was sought. For example, if the client says, without indicating that he is going to Greece, “Can a person be extradited from Greece?”, it could be inferred that he might well be going to Greece and the security services could use that inference as a subject for their investigation, which might help that investigation considerably.

It is therefore possible to use this system at the second stage, the stage at which the material is available to study, to ensure that legal professional privilege is not breached but that the maximum information that is useful to the security services can be extracted from the material that has been intercepted without breaching that principle. That is what I want to achieve with this amendment. I believe it could be better phrased—we had some problem with reception, which I need not go into—but what is required is a power for the commissioner, which could be well expressed by parliamentary counsel, allowing the genuine privilege to apply at the same time as giving to the security services all possible information that they could reasonably use from the material collected. That is the purpose of my Amendment 55A. I am conscious that the draughtsmanship could be improved upon and I would be happy to see that happen, but the principle that I want to achieve is very clear and I think it is well supported by common sense.

[Lord Carlile of Berriew]

My Lords, I would like to make three points. The first is a general point. I am sure the whole House is grateful to Ministers and all others who have been involved in trying to produce a safe system that provides a public interest exception in relation to legal professional privilege. There was an argument running until a few days ago that there should be no public interest exception, but I do not believe that position is now going to be put forward in this House—certainly not voted upon. Indeed, we can think of examples that may or may not fall within legal professional privilege but could, which would properly be exceptions to which the authority should have regard.

My second point is about Amendment 27 and the proposal that there should be a new standard of proof— new to the criminal law or criminal procedure as far as I know it—containing the phrase “clearly outweighs”. “Clearly outweighs” means no more than the existing civil standard of proof, the balance of probabilities. There is no doubt that those who decide that the balance of probabilities, however expressed, applies will give their reasons in writing. With great respect, because I share the aspiration behind Amendment 27, I think it muddies the waters in an unwelcome way.

I turn with trepidation to Amendment 55A, spoken to with such eloquence by the noble and learned Lord, Lord Mackay of Clashfern. Again, I am sympathetic to what he is trying to achieve, which is to narrow the area for removal or breach of legal professional privilege. It is something which we lawyers regard as near sacrosanct as any concept in the law. My concern is with the word “must” in his amendment. I am happy for an attempt to be made to redraft it, as he recognised might be necessary, but I would not be content to see “must” in any redraft for the following reasons.

When the procedure now set out in Amendment 55 is followed by the Investigatory Powers Commissioner, he—or she—may direct that the item is destroyed or impose conditions as to disclosure, but in making that decision he will be considering a number of contextual issues. Obviously, he will be considering the context at the time when he is making the immediate judgment, but he may also be considering another context. It may well be that it is envisaged that a criminal trial will ensue later.

The rules of disclosure for criminal trials are founded on the notion that the authorities retain material, except in wholly exceptional circumstances. For example, the material retained may materially undermine the prosecution case when a trial takes place, and it is required that evidence that materially undermines the prosecution case should be disclosed to the defence. At the moment when the interception takes place, it may not appear that that might be the result of the material, but it could happen, and the commissioner may well envisage that.

We should not have a provision in which that disclosure cannot occur. One reason why we have had such difficulty making intercept material admissible in court is because of the problems about disclosure. In the case of intercept, the issue is not destruction but huge volume, which makes the normal English and Welsh—and, I believe, Scottish—law requirements for disclosure very difficult to fulfil. There is a risk that the same might happen if there was compulsion of any kind to destroy material.

Answering, as I said, with great trepidation, what has been said by the noble and learned Lord, I oppose any form of compulsion in such a clause. I hope that the Minister will carefully consider that issue before determining whether or not to accept the advice of someone who I know is one of his most esteemed Scottish colleagues.

Investigatory Powers Bill

Lord Carlile of Berriew Excerpts

Report: 2nd sitting (Hansard - part one): House of Lords
Monday 17th October 2016 Lords Chamber

This is not restricted, as with most other intrusive powers, to only the security services or cases of serious crime. Even the Food Standards Agency could access it. Of course, if there was a fully worked-up proposal with a proper operational case for such provision, and with clear reassurances about how it would operate and how data would be safeguarded, noble Lords could make an informed decision on whether a request filter was necessary and proportionate, but there is not, and so we cannot. It is simply a vague idea of something that might be useful, for which a one-sided and I believe misleading case has been put forward by the Government. I beg to move.

[Lord Carlile of Berriew (LD)]

My Lords, I regret that I cannot support my noble friends’ attempts to remove these clauses from the Bill. I say with great respect to them that it is a misconceived attempt and displays a misunderstanding of what the authorities do, have done and can do. In my judgment, for what it is worth, the removal of these clauses would reduce the capacity of the authorities legitimately to interdict what could be extremely serious crime and catch those guilty of it.

We have heard terms such as “limitless”, “monster” and “unfettered”. At the risk of repeating what has been said earlier on Report, it is grossly exaggerated to suggest that unfettered, monstrous or limitless power is being given to the authorities. There can never have been a Bill on subjects such as these that has had so many fetters on the authorities and that has placed so many limits on what they can do. Indeed, if it has created a monster at all, it is a monster of regulation, not of unregulated activity.

I saw a briefing on these amendments earlier today. They are founded on the proposition that the authorities—the police and the security services—have the time to go on fishing expeditions. If that is what is being said, I can think of at least two kinds of fishing expedition. One is the sort of fishing expedition where you stick a worm on the end of a line and dangle it into water not believing that there is anything in there, and the other involves casting a sprat to catch a mackerel. If there is a fishing expedition here, it is the kind in which the authorities would know that there is very likely to be a mackerel beneath the water into which they cast their well-fattened sprat.

These amendments would inhibit current practice in the courts and in investigations. I can think of two murder cases in which I appeared as leading counsel—one as a prosecutor, the other as a defender—in which a conviction resulted from exactly the kind of activity being permitted in the Bill. In each case, it is certainly possible—I do not want to exaggerate—that there would have been no conviction if not for the availability of this kind of activity. At the time of each of those cases, the activity was nothing like as well-controlled or scrutinised as is proposed in the Bill. The sort of activity that I am describing can and has been used to catch murderers, paedophiles and money launderers as well as terrorists. It is a necessary tool of a responsible state.

The issue is whether the Bill allows this information to be obtained in a responsible way by the state. I believe the Government have gone a very long way to ensure that everybody can be confident that in future such material will be obtained by a responsible state and that these clauses are a necessary part of that activity.

[Lord Strasburger (LD)]

My Lords, I rise to speak to Amendments 100C, 100D and 100E which have been very ably explained by my noble friend Lord Paddick.

When vague and non-specific legislation comes before us, it is perhaps because its authors are unable to be more precise because they have not thought it through or because they choose to not share the details with us. Whichever reason applies in the case of the request filter, there is no doubt that Clauses 64, 65 and 66 are notable more for what they do not say than for what they do. Despite the best efforts of both the Joint Committees on which I had the privilege of sitting—the one on this Bill and the one that examined the draft Communications Data Bill in 2012, in which the request filter first appeared—we are none the wiser about the request filter architecture, how it will work, who will develop it and who will operate it.

We have only to look at an obscure section in an elderly piece of legislation—the Telecommunications Act 1984—to see how overbroad drafting can lead to unintended consequences. Years ago, Section 94 of that Act was used by the Home Office secretly to create a brand new, highly intrusive power—namely, bulk acquisition of communications data—which the Government, to their credit, are now bringing in from the cold in this Bill. For a long time, however, the existence and use of this power carried on without the approval, or even the knowledge, of Parliament. Quite by chance, just a few hours ago, the Investigatory Powers Tribunal ruled that this very powerful secret power of bulk acquisition of communications data, which was created out of that vague section in the Telecommunications Act 1984, has been used illegally by the intelligence and security services for 10 years. We must guard against carelessly passing clauses so vague as to be open to misuse.

Investigatory Powers Bill

Lord Carlile of Berriew Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, it will not surprise my noble friend to learn that I oppose the amendment that he has just moved. We made reference during our previous day on Report to papers that were presented by the Government at the time of First Reading. Those papers included, as was mentioned on Monday of this week, a paper in which GCHQ explained why the bulk acquisition of communications data material might be crucial to interdicting a major terrorism event which it thought was likely to occur, or might possibly occur, in the near future.

The issue was then referred to David Anderson—and I am surprised that my noble friend does not accept what Mr Anderson, the independent reviewer, said on the matter. He reminded us that three of the powers under review—bulk interception, bulk acquisition of communications data and bulk personal datasets—were already in use across the range of MI5, MI6 and GCHQ activity, from cyberdefence, counterterrorism and counterespionage to combating child sexual abuse and organised crime. He said:

“They play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”.

The GCHQ paper to which I referred dealt with “further afield”.

Mr Anderson continued:

“After close examination of numerous case studies, the review concluded that other techniques could sometimes, though not always, be used to achieve these objectives: but that they would often be less effective, more dangerous, more resource-intensive, more intrusive or slower”.

Mr Anderson concluded that there was a proven operational case for three of the powers already in use, and he agreed that there was a distinct though as yet unproven operational case for the fourth power: bulk equipment interference. He also recognised the “breath-taking”—that was his word—pace of change in this area, and that we needed to make sure that the authorities had the proportionate powers that were required to protect this country, and other countries, from terrorism.

Therefore, the Bill provides the powers with a very elaborate set of protections. We also have—it is available in the Public Bill Office—the Bulk Acquisition DRAFT Code of Practice, dated autumn 2016: it is very recent. In paragraphs 3.10 and 3.11 of the code—and, indeed, elsewhere in the code—the most elaborate protections are described. For example, paragraph 3.10 contains operational guidance and advice for those who are dealing with these matters and states in terms:

“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.

Paragraph 3.11 of the code sets out in four very carefully drafted bullet points the elements of proportionality that should be considered before the powers are used. It includes assessing whether other methods have been considered and whether those other methods could have provided a reasonable outcome without the necessity of the invasion of privacy which undoubtedly the provisions describe.

I therefore ask my noble friend to state, when he comes to reply to this short debate, what his view is of the code of practice—and, in particular, of the part to which I referred.

[Lord Paddick]

The amendment relates specifically to internet connection records being acquired, and I have yet to hear my noble friend address any of his remarks to the issue of those records.

[Lord Carlile of Berriew]

If my noble friend wants me to be specific, I will, but I was trying not to take up too much time. Let us take the example of a piece of information, given to a security service, that people in possession of a bulk delivery of a certain type of telecommunications equipment, say a phone brand, are involved in the planning of a terrorist event. In order to find out quickly who these people are, the authorities would need to attack the bulk, so as to exclude all people who are not involved in the planned event. This is an absolutely routine technique that is used. I see one or two of my noble friends turning round in surprise. If they are surprised, they have not even read modern spy novels, let alone about the reality of what is being done by intelligence agencies all around the world.

The answer to my noble friend is as simple as that. I will just repeat my question, because I would like him to reply to it in due course. I take it that he has read the code of practice. What is missing from the code of practice that is required in order to provide the protection he wishes for? It is all in the code of practice; it is all in the statute. I apologise for repeating something I said on Monday, but these provisions, as drafted, are a careful and responsible response by a Government who wish to do no more than the state absolutely has to, safely, to protect their citizens.

[Lord Rooker (Lab)]

I will answer that point. The Bill of course is not draconian in any way whatever. It is a modest response to the technology that exists today, and an attempt to look at the technology of tomorrow that we do not know about. That is part of the problem. I regret that I was a bit late and missed the first 20 seconds of the noble Lord’s introduction, so I may have this wrong, but he gave the impression that David Anderson supported his amendment. One only has to go to the report published in August, from which I want to put two sentences on the record. Paragraph 6.16 says:

“There is a clear value in the use of bulk powers to eliminate lines of enquiry, so that resources can be concentrated elsewhere and disruption to the public minimised”.

I do not think we should fetter the security services by this amendment. The other sentence from the report that I want to put on the record is in paragraph 6.47, at point (d):

“Even where alternatives might be available, they are frequently more intrusive than the use of bulk acquisition”.

Most of the bulk acquisition will never, ever be read. The vast majority—99.999%—will never be read or studied by anybody, and it gives a false impression when the noble Lord says that all our telephone calls, internet searches, and web browsing will be read by someone. That is simply not true. What is more, he has been briefed and knows that that is the case. I do not see why the opponents of the Bill, in this House or the other House, should try to give a false impression of what it is trying to do. I hope the noble Lord tests the opinion of the House, because I would like it clearly on the record that he probably has little or no support for his amendment.

[Lord Oates (LD)]

My Lords, I support my noble friend Lord Paddick and the amendment that he has moved. I should say at the outset that I do not doubt for one moment the very severe threats that we face, nor the essential and dedicated work done by our security services and the police. In the coalition Government we had to tackle many of these issues, and the then Deputy Prime Minister was always as impatient with those who were careless about our security as he was with those who were careless about our liberty.

So I understand the reality of the threats that we face. However, I am afraid I cannot agree with my two noble friends who have just spoken. We have to be very clear what we are talking about in the amendment, which is specifically about ICRs. I think that in some of this debate we might have missed that point.

My noble friend Lord Carlile referred to the fact that powers were already in use, but the bulk powers in relation to ICRs obviously cannot be in place because the powers of the Bill granting the requirement to collect ICRs have not come into effect, so they are not collected in that way. I am surprised that my noble friend takes the view that he does, because during the whole course of the debate on the Bill he has made much of the point that he has been consistent. I am not clear why his position has changed so significantly on the collection of ICRs. As I have noted in our previous debates on the subject, on 25 May 2013, writing in the Daily Mail, my noble friend wrote the following:

“I, Lord Reid, Lord West and others of like mind have never favoured the recording of every website visited by every … user, though we have been accused of that”.

[Lord Carlile of Berriew]

My noble friend is playing with language. I have never favoured the recording of every website use we make, and I do not support the recording of them now. It is the availability of the metadata that is important. I ask my noble friend to deal with the example I gave in answer to my noble friend Lord Paddick and tell us whether he thinks it is reasonable.