Investigatory Powers Bill

Lord Janvrin Excerpts

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

Moved by

[Lord Janvrin]

1: Clause 1, page 1, line 5, at beginning insert—
“( ) This Act sets out the extent to which certain investigatory powers may be used to interfere with privacy.”

[Lord Janvrin (CB)]

My Lords, I rise briefly to speak to Amendment 1, tabled in my name. I declare an interest as a member of the Intelligence and Security Committee. When the ISC reported on the draft Bill, we recommended that privacy protection should form the backbone of the legislation, around which the exceptional, intrusive powers would then be built. This recommendation was to underline at the very outset of the Bill that a delicate balance must be struck between an individual’s right to privacy and the exceptional powers needed by the intelligence agencies to ensure our safety and security.

The Bill has seen substantial changes in the other place and at earlier stages in this House, and those changes have introduced significant improvements in the protection afforded to privacy. Very important in this process was the introduction by the Government at the overview of the Bill of the clause on general duties in relation to privacy. This amendment seeks simply to reinforce the Government’s approach. The Intelligence and Security Committee still feels that there is merit in placing a simple statement right at the forefront of the legislation to provide additional clarity that there should be no doubt that privacy protection remains a fundamental priority. I hope that, on this occasion, the Minister may feel able to support this very brief amendment, and I look forward to hearing his response. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I hesitated because I thought the Minister might wish to introduce the government amendments before I spoke to mine, as I think one of mine may be an amendment to one of his. We on these Benches support the noble Lord, Lord Janvrin, on Amendment 1. It would provide a very clear statement of purpose for the Bill, and one which would be very useful. The Lord Advocate said in Committee that an amendment similar to this would not add value. On the contrary, it would add value by giving that statement of purpose. The first clause is badged as an overview of the Act. In fact, what it does is to list the different parts of the Act and give an overview of each of them. The clause does not give an overview of the Act; the noble Lord’s amendment would do so, and the clause would live up to its name.

We have Amendments 8, 9 and 12 in this group. Amendment 8 would provide that the powers should not be used if the objectives could be achieved by other, less intrusive means. This, too, was an amendment that we debated in Committee. The Bill provides that regard must be had to the possibility of achievement by other, less intrusive means. My noble friend Lord Lester of Herne Hill apologises that he cannot be here today—although I am not sure whether one should apologise for an illness. He has kept me up to date with his position. He talked about the “rubbery” quality of the term “have regard to”. This amendment would make the obligation an absolute one—but not an unreasonable one, because the term “reasonably”, as in,

“could reasonably be achieved by other less intrusive means”,

is included. My noble friend Lord Lester referred to this as,

“classic principle of proportionality language”.—[Official Report, 11/7/16; col. 53.]

I was pleased that, on that occasion, we had the support of my noble friend Lord Carlile of Berriew, who said that the wording,

“would be more useful and more certain”,

than that with which he was comparing it, and that, above all, it would,

“avoid unnecessary disputes about the meaning of and compliance with Article 8”—

that is, Article 8 of the convention—

“in the courts”.—[Official Report, 11/7/16; col. 54.]

My noble friend Lord Lester had painted a rather gloomy picture of the problems that could arise if the legislation was not absolutely clear.

The noble Earl agreed to consider the proposition. He referred to the use of the wording in codes of practice. My noble friend Lord Carlile, who was more polite than I was about problems with codes of practice, said that he supported the amendment because it would be preferable to have the words in the Bill,

“rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty”.—[Official Report, 11/7/16; col. 56.]

Both my noble friends have very considerable experience of arguing the case—no doubt both ways—in the courts. I am not sure whether the Government’s Amendments 10 and 11 are intended to address the point that we were debating. I am sure I will be told.

Our other amendment, which I will have to speak to now because we are on Report, is an amendment to government Amendment 11. I welcome government Amendments 10 and 11, but I am a bit uneasy about intrusiveness being gauged against the sensitivity of the information. My point is a wider one: everyone in every case should expect the least intrusive means to be tried first. Amendment 12 to government Amendment 11 is tabled to understand whether everything in Amendment 11 falls within Amendment 10. We have wording in Amendment 10 about the “particular sensitivity” of information. Amendment 11 gives examples of “sensitive” information. Are there, therefore, two hurdles to be crossed: “sensitive” and “particular sensitivity”? Amendment 12 seeks to understand how the two amendments relate to one another.

Investigatory Powers Bill

Lord Janvrin Excerpts

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

Moved by

[Lord Janvrin]

142: Clause 212, page 169, line 33, at end insert—
“( ) information about the following kinds of warrants issued, considered or approved during the year— (i) targeted interception warrants or targeted examination warrants of the kind referred to in section 17(2), (ii) targeted equipment interference warrants relating to matters within paragraph (b), (c), (e), (f), (g) or (h) of section 96(1), and(iii) targeted examination warrants under Part 5 relating to matters within any of paragraphs (b) to (e) of section 96(2),”

[Lord Janvrin (CB)]

My Lords, I shall speak to Amendments 142 and 145 to Clause 212. These are in my name and I speak as a member of the Intelligence and Security Committee. This clause deals with the annual reports to be made by the Investigatory Powers Commissioner to the Prime Minister on the functions of the judicial commissioners.

The subject of Amendment 142 concerns those targeted warrants which relate to groups of people engaged in a common activity or sharing a purpose, commonly referred to as thematic warrants. The Intelligence and Security Committee has considered that thematic warrants have the theoretical potential to intrude upon the privacy of a great many people and there have been concerns as to the widespread intrusion they might theoretically be used to authorise. In the committee’s report on the draft Bill, we recommended that such warrants should be subject to greater constraints. In seeking to address this in the other place, the chairman of the ISC explored, first, whether the duration of these warrants could be limited or, secondly, whether the grounds on which they could be authorised could be drawn more narrowly.

In response, the Government presented the committee with convincing classified evidence regarding the use of these forms of warrants across a number of real operations, involving serious threats to our security. This evidence was reassuring in demonstrating that these operations, enabled by the so-called thematic warrants, intruded only on small and defined groups of people, not on the hundreds or even thousands of people that some perhaps feared might be the case. Nevertheless, the ISC believes that some form of additional constraint is justified and has therefore been exploring options with the Government over recent months. The conclusion is that we might best achieve this aim by strengthening the scrutiny given to these warrants. This is the aim of Amendment 142 to Clause 212.

The amendment places a specific requirement on the commissioner to report on thematic warrants, thereby exposing them to increased scrutiny by the commissioner, audit by the commissioner’s staff and, through the commissioner’s published reports, debate and scrutiny by Parliament, the media and public. I am most grateful for the Government’s co-operation in finding a solution to this issue relating to thematic warrants, and I hope the Minister will be able to support this amendment.

If that is the case, it would be helpful if it were possible for the Minister to outline in his comments the degree of disclosure about thematic warrants that he might expect to see in those reports. The ISC’s assumption is that it would include the number of thematic warrants applied for and issued, but it hopes that it might also include an indication of the number of people covered by the warrants. It would improve transparency and public reassurance if it can be demonstrated in this manner that these warrants are not as broad as some have feared.

Amendment 145 to Clause 212 relates to the referral of cases to the Investigatory Powers Commissioner. This is an issue I raised in Committee. In its report on the draft Bill, the Intelligence and Security Committee recommended that it should be able to refer matters to the IP Commissioner so that the commissioner can undertake detailed investigations or audits about concerns raised by the ISC. This enables the oversight mechanisms to complement one another, with the ISC considering the strategic issues and overall policies and the commissioner focused on specific authorisations and warrants for individual operations. Noble Lords will note that the power of referral from the ISC to the IP Commissioner has already been introduced into the Bill at Clause 214, and we are grateful for the Government’s assistance in its inclusion.

This further, very small, amendment now picks up the point I raised in Committee that any report the commissioner might make to the Prime Minister as a result of a referral from the ISC should also be shared, as appropriate, with the committee. This will strengthen the oversight community as a whole, and I hope the Government will feel able to support the amendment. I beg to move.

[Earl Howe]

My Lords, as we have discussed in previous debates in this House and in the other place, the use of thematic warrants is crucial to our law enforcement and security and intelligence agencies, but we welcome these amendments, which will provide reassurance that these warrants will be subject to specific scrutiny by the Investigatory Powers Commissioner and enhance transparency about their use.

The noble Lord, Lord Janvrin, invited me to comment on the degree of disclosure I would expect to see in the commissioner’s report. In my view—and I hope the noble Lord will understand this—it would not be appropriate for the Bill or indeed government to fetter the independence of the commissioner by specifying the detail of what he may choose to publish in relation to the use of thematic warrants. In due course the commissioner will wish to consider whether his duty to publish information about the use of these warrants is best satisfied by the publication of data such as the number of thematic warrants issued during a limited period or other information relating to the way in which thematic warrants are used in practice. These decisions will rightly rest with the Investigatory Powers Commissioner. However, I welcome the amendment which imposes a very clear duty on the commissioner to ensure that these warrants are subject to particularly robust scrutiny and that information is regularly put in the public domain about their use. Indeed, I would expect the commissioner to ensure that his report serves to illuminate any areas that cause him particular concern.

The process by which the Intelligence and Security Committee of Parliament can refer issues to the Investigatory Powers Commissioner was previously discussed in this House. It is right that the committee can bring issues that merit further investigation to the attention of the IPC, who may then decide whether to take further action. In addition, it is important that the right balance is struck between the independence of the IPC on the one hand and respecting the remit of the committee on the other hand. By requiring that the Prime Minister provides a copy of any IPC report that follows an investigation, inspection or audit carried out following a committee referral in cases where the report falls within the remit of the committee, this amendment finds that balance. Accordingly, I am happy to accept both these amendments.

[Lord Janvrin]

I thank the Minister for his helpful response. I take his point about the importance of the independence of the Investigatory Powers Commissioner.

Amendment 142 agreed.

--- Later in debate ---

Moved by

[Lord Janvrin]

145: Clause 212, page 170, line 33, at end insert—
“(11) Subsection (12) applies if the Prime Minister receives a report from the Investigatory Powers Commissioner under subsection (1) or (4) which relates to an investigation, inspection or audit carried out by the Commissioner following a decision to do so of which the Intelligence and Security Committee of Parliament was informed under section 214(2).(12) The Prime Minister must send to the Intelligence and Security Committee of Parliament a copy of the report so far as it relates to—(a) the investigation, inspection or audit concerned, and(b) the functions of the Committee falling within section 2 of the Justice and Security Act 2013.”

Investigatory Powers Bill

Lord Janvrin Excerpts

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

Moved by

[Lord Janvrin]

195: After Clause 144, insert the following new Clause—
“Offence of breaching safeguards relating to examination of material under bulk interception warrants
(1) A person commits an offence if—(a) the person selects for examination any intercepted content or secondary data obtained under a bulk interception warrant,(b) the person knows or believes that the selection of that intercepted content or secondary data for examination does not comply with a requirement imposed by section 143 or 144, and(c) the person deliberately selects that intercepted content or secondary data for examination in breach of that requirement. (2) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(3) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”

--- Later in debate ---

Moved by

[Lord Janvrin]

241: After Clause 202, insert the following new Clause—
“Offence of breaching safeguards relating to examination of material
(1) A person commits an offence if—(a) the person selects for examination any data contained in a bulk personal dataset retained in reliance on a class BPD warrant or a specific BPD warrant, (b) the person knows or believes that the selection of that data is in breach of a requirement specified in subsection (2), and(c) the person deliberately selects that data in breach of that requirement.(2) The requirements specified in this subsection are that any selection for examination of the data—(a) is carried out only for the specified purposes (see subsection (3)),(b) is necessary and proportionate, and(c) if the data is protected data, satisfies any conditions imposed under section (Protected data: power to impose conditions).(3) The selection for examination of the data is carried out only for the specified purposes if the data is selected for examination only so far as is necessary for the operational purposes specified in the warrant in accordance with section 194.In this subsection, “specified in the warrant” means specified in the warrant at the time of the selection of the data for examination.(4) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(5) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”