Investigatory Powers Bill

Lord Janvrin Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Janvrin (CB)]

My Lords, as the noble Marquess, Lord Lothian, has mentioned, I am a member of the Intelligence and Security Committee. It is slightly daunting to follow four very senior members, either past or present, of that committee as I am a relative newcomer. I join them and other noble Lords, many of whom have direct experience of intelligence, security and law enforcement matters, in welcoming the Bill before us. It covers ground that is of real and utmost importance in terms of national security and the prevention of serious crime while touching on crucial issues of personal privacy in a digital context, which has been referred to many times; it is not only complex, but very fast-moving. We are also up against a deadline set by the sunset clause in the RIPA Act 2004.

I join others who have spoken, including in particular the noble Lord, Lord Butler, in acknowledging the vast amount of work orchestrated by the Government that has gone into the preparation of the Bill before us. It has been the subject of numerous reports, to which a number of speakers have referred, including two from the Intelligence and Security Committee. This work has led to the Bill now progressing through Parliament with intensive scrutiny, as was referred to in the other place. There is one further external review being done by David Anderson QC of the operational case for the intelligence agencies to have access to bulk investigatory powers. In the last Parliament the ISC considered bulk interception in great detail and was satisfied that that capability was justified, subject to robust safeguards and oversight. Furthermore the current ISC, again after considering a great deal of classified evidence on this subject, reached a similar conclusion for bulk equipment interference, the bulk acquisition of communications data and bulk personal datasets. I look forward to David Anderson’s review as an invaluable contribution to further consideration of these bulk powers by this House.

Your Lordships will be aware that a significant number of improvements have been made to the Bill in the other place, including extra safeguards, improved oversight mechanisms and stronger privacy protections. A number of these improvements were made on the recommendation of the ISC and we are extremely grateful for the co-operation shown and helpful approach taken by the Government throughout. That said, as the noble Marquess, Lord Lothian, mentioned, there are still a few aspects of the Bill on which my ISC colleagues have concerns or questions, and I should like to reinforce two of those, both of which have already been mentioned.

The first is the issue of restrictions on the use of class warrants for the retention and examination of the most sensitive personal information within bulk personal datasets. Noble Lords will be aware that the ISC tabled amendments in the Commons that would have restricted this power where a significant amount of the data would be sensitive. We looked to the Data Protection Act 1998 to determine what Parliament had already defined as being the most sensitive personal data. It is the use of generic class warrants in relation to that sensitive data that we have questioned. Our understanding is that the Government have accepted that in principle, but it would be interesting if the Minister could indicate whether he intends to bring forward amendments on this point in Committee.

The second aspect has already been referred to by the noble Marquess, Lord Lothian. It refers to offences for the misuse of investigatory powers contained in the Bill which are scattered throughout various pieces of legislation and common law. While in some cases there are severe penalties for abusing those powers, in other cases, as has been mentioned, the penalty can be described as little more than a reprimand or a moderate fine. Such penalties may be suitable for dealing with honest mistakes or more minor instances of negligence, but there may be a point where the malicious and wilful abuse of intrusive powers could be dealt with more consistently with the use of more severe criminal penalties than are currently available.

Finally, I shall raise a point referred to by the noble Baroness, Lady Neville-Jones, and the noble Lord, Lord West. It is some 18 months after the ISC’s Report on the Intelligence Relating to the Murder of Fusilier Lee Rigby, but it still seems unclear whether the extraterritorial nature of warrants asserted by the Bill will be honoured by communications companies based overseas. The ISC recommended in the Fusilier Lee Rigby report that access to communications held by overseas-based providers, particularly those in the United States, was a very significant security problem, so I would be grateful if the Minister could comment on the progress of negotiations on that matter, in particular with the Government of the United States.

As your Lordships scrutinise the Bill over the coming weeks, whatever views may be expressed regarding its specific provisions, we should not lose sight of what this new Bill as a whole achieves, as many speakers have already mentioned. In particular it makes significant improvements in terms of transparency by avowing certain intrusive powers for the first time, including equipment interference, bulk acquisition and bulk personal datasets. While the use of those powers previously was legal, they were shrouded in secrecy and obscured behind some fairly impenetrable legal language. Having these powers set out on the face of the Bill is a considerable improvement. We should also welcome the role of the judicial commissioners as an extremely significant safeguard, and while we may debate the detail of their role, once again I urge noble Lords to acknowledge this very welcome additional reassurance.

Based on the recommendations of the ISC, David Anderson and RUSI among others, the Government have recognised the need for a new, modern and transparent legal framework for this crucial and complex area. The Bill is a huge improvement on the legislation it will replace. I look forward to further discussions in your Lordships’ House as we scrutinise it in the weeks to come.