Investigatory Powers Bill

Lord Keen of Elie Excerpts

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

[Lord Rosser (Lab)]

As I understand the situation, the Independent Reviewer of Terrorism Legislation, David Anderson QC, was consulted by the Government on whether it would assist him in his role if he had the support of a privacy and civil liberties oversight board. The outcome was that the independent reviewer is now supported instead by the provision of specialist legal assistance, as David Anderson himself recommended in his 2014 annual report.

David Anderson announced the appointment of three specialist advisers, whom he had personally selected, earlier this year and to the best of my knowledge the independent reviewer has welcomed that approach. Given the measures in this Bill, including provision for the Investigatory Powers Commissioner and his or her role in protecting civil liberties, and the changes made as a result of recommendations of the different independent committees which looked at the Bill as originally worded—including a Joint Committee of both Houses—and the further changes and commitments made both during the Bill’s passage through the Commons, which led to us voting for it at Third Reading, and in this House, it is not clear what an additional board would positively contribute. We cannot support the amendment.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, it may appear that there is little I can add, but I have my brief.

Considerable praise has been expressed throughout the passage of this Bill for the work of David Anderson QC, whose report, A Question of Trust, provides the backdrop to this legislation and whose subsequent review of the operational case for bulk powers has informed our scrutiny of Parts 6 and 7. There can be no doubt about the importance of Mr Anderson’s office, that of the Independent Reviewer of Terrorism Legislation.

Following the passage of the Counter-Terrorism and Security Act 2015, which has been alluded to, the Government undertook a consultation on whether David Anderson would benefit in his role from the support of a privacy and civil liberties oversight board. Having been informed by a public consultation on the board’s establishment, by David Anderson’s own recommendations on this matter and by the need to ensure the best value for public money, the Government decided that they could most effectively support the reviewer in discharging his statutory functions by instead providing him with specialist legal assistance in the form that he himself recommended—as noted by the noble Lord, Lord Rosser.

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[Baroness Hamwee]

My Lords, this might be a mouse after the last amendment but it is not unimportant. It is about transparency—and perhaps more than transparency. It is about positively putting information into the public domain and not simply providing information which can be looked through. It is, if you like, a companion to the very welcome privacy clauses in the Bill. It is intended to help the citizen understand what is going on and to enable operators to put into the public domain the warrants and so on with which they have to deal. It provides that they will not commit an offence by disclosing not details but the number of warrants, the number of accounts and the number of warrants complied with, going back only for a limited period of six months. The second limb of the amendment —that they can do more, or more can be done by whoever, if the Secretary of State agrees it—should go almost without saying.

I am told, and would welcome confirmation if the Minister can give it, that the Government are considering regulations to introduce a clear framework for transparency and that provisions such as this might fall within those. To that extent, my amendment is a probing amendment.

User transparency around engagement with law enforcement and government agencies is a key component of accountability to users. It is a prerequisite too, I would say, of redress. Given that the Government are committed to greater transparency than we have had hitherto through this Bill, and to this being a world-leading piece of legislation, I hope that they will be sympathetic to the provisions proposed. The amendment would permit providers to publish statistical data and would complement the Investigatory Powers Commissioner’s annual report, looking at the issues through a different lens and from another perspective. I beg to move.

[Lord Keen of Elie]

My Lords, it is the Government’s view that a new public reporting clause, as proposed by this amendment, is unnecessary. I will seek to explain why.

Clauses 55 and 125 already provide for the Secretary of State to make regulations that will permit operators to report information in relation to the number of interception and equipment interference warrants they have given effect to. Furthermore, the Government have proposed amendments to these clauses to give more flexibility to permit operators to publish greater statistical information about the warrants they have received. In response to a point made by the noble Baroness, Lady Hamwee, I can tell the House that it is the Government’s intention that the regulations will permit companies to publish details relating to the number of warrants they have given effect to and the number of customer accounts to which these warrants refer.

However, as was previously discussed in Committee, we need to be very careful about any exemptions to prohibitions on revealing sensitive information and the extent to which they might reveal the capabilities of the agencies. It is already the case that terrorists and criminals change their behaviour and the means they use to communicate to evade detection, and we must not give them further information that would help them to do so.

The Secretary of State must have the ability to protect the technical capabilities deployed by law enforcement and the security and intelligence agencies by setting out the way information relating to warrants may be reported—for example, the time period between being served with a warrant and publication of that information, or the bandings to be used for reporting on the numbers of warrants received. It is our view that the level of detail required is appropriate for such conditions to be provided for in regulations, not in the Bill.

The Government will of course continue to work closely with telecommunications operators on their transparency reporting. We have already discussed the proposed content of the draft regulations with them. Indeed, the government amendments to Clauses 55 and 125 reflect our efforts to address issues raised by operators in response to this consultation. Of course, also, the regulations issued under Clauses 55 and 125 will in due course be subject to parliamentary scrutiny.

It is therefore our view that the Bill and the Government amendments already provide for what these amendments seek, in in a way that allows companies to be transparent and the Government to protect sensitive capabilities. Accordingly, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, I thank the noble and learned Lord for that response. What we are really being told is that the fleshing out of transparency provisions that I seek is in train. I of course understand points such as the need to consider exceptions.

I am prompted by this to mention a question that I should perhaps have asked the Government a little while ago, but I think all noble Lords will be interested. I am not expecting the noble and learned Lord to respond to this instantly, but we would all be interested to know the timetable for introducing regulations. We know there is a deadline of the end of this year because of DRIPA coming to the end of its natural life, but I assume the Bill cannot operate without a lot of secondary legislation. I wonder whether there could at some point be an indication of not only how the Government propose to deal with regulations but how the House, which is generally very supportive of the thrust of the legislation, despite one or two bits and pieces, can be helpful without losing its proper role of scrutinising regulations.

I should not perhaps take time on Report to be as pompous as that sounds. It is intended to be both an inquiry and an expression of concern about a matter that is for Parliament, not just the Government. Having said that, and welcoming the information about the work going on on this subject, I beg leave to withdraw the amendment.

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[Lord Rosser]

I, too, have sympathy with many of the points made by the noble Baroness, Lady Jones. If there were to be a requirement for reasonable suspicion in addition to requiring decisions to be necessary and proportionate, because the two are not the same thing, one could envisage a situation—for example, in a kidnap case—where it could make life rather more difficult. In such a case, it might not be known whether it was a kidnap or simply a person who had gone missing.

[Lord Keen of Elie]

My Lords, as indicated by the noble Baroness, the amendments would provide that a targeted interception or equipment interference warrant could be issued in the interests of preventing or detecting serious crime only where there was a reasonable suspicion that a serious criminal offence had been or was likely to be committed.

The amendments are simply not necessary. I assure the House that for a warrant to be issued for the prevention or detection of serious crime, a sufficiently compelling case will always be required. A speculative warrant could never be approved, so these amendments address a concern that is fundamentally misplaced.

The Bill already provides strict and robust safeguards that ensure that a warrant may be issued only where it is necessary and proportionate. That is a well-established test. This decision must be approved by both the Secretary of State and a judicial commissioner. I pick up a point made by the noble Lords, Lord Paddick and Lord Rosser: in the case of a warrant for the prevention and detection of serious crime, the test of necessity and proportionality simply could not be met where there was not a reasonable suspicion that a serious crime had been or was likely to be committed. In these circumstances, I invite the noble Baroness to withdraw the amendment.

[Baroness Jones of Moulsecoomb]

I thank the noble and learned Lord for his answer. I never tire of telling this House that I was targeted by the Met police, monitored by them and put on to a domestic extremist database with, I would argue, absolutely no cause. Noble Lords will forgive me if I do not quite believe that there are enough safeguards. Quite honestly, I wonder if in five or 10 years I will have the opportunity to come to Ministers and say, “I told you so”. However many safeguards are put in, without strengthening them and making them absolutely clear you leave the door open for abuse. We have seen it in the past. We know very well that part of this Bill’s meaning is to cover abuses of previous legislation. I am deeply unconfident about the safeguards proposed, as are other organisations outside the House. I beg leave to withdraw the amendment.

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Moved by

[Lord Keen of Elie]

22: Clause 27, page 21, line 2, leave out “and (3)” and insert “to (3A)”

[Lord Keen of Elie]

My Lords, the Government have listened carefully to concerns expressed in this House and by the legal profession about the protections in the Bill relating to material which attracts legal privilege, and in response to those concerns the Government propose a number of amendments.

We have already discussed the amendment to the privacy clause which makes it clear that a public authority must consider, when seeking a warrant or authorisation, whether additional protections apply because particularly sensitive material is to be obtained, including that which attracts legal privilege. This sets the context for the additional protections which are set out in subsequent parts of the Bill. It puts beyond doubt the importance of legal privilege. It makes it clear that public authorities must be mindful of the particular sensitivity of material which attracts privilege and must apply the additional protections provided for in the Bill.

The next set of amendments provided for in this group amend Clauses 27 and 107, which set out the protections for items subject to legal privilege in the targeted interception and targeted equipment interference provisions. Amendments 99 and 132 make it clear that it will not be possible to target legally privileged material solely on the grounds that is in the interests of the economic well-being of the UK. Amendments 100 and 133 define the exceptional and compelling test that applies when the intention is to obtain legally privileged material. The Bill is currently silent on this test, and detail as to what it means in practice has been set out in the draft code of practice.

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[Baroness Hayter of Kentish Town (Lab)]

Like other noble Lords, I thank the Minister and the Bill team for the detailed discussions—perhaps negotiations is a better word—that they have had not only with us but with other interested parties. We have sought to balance our strong desire to protect clients’ confidentiality—their ability to speak openly and honestly with their lawyer, safe in the knowledge that information will go no further —with the need to safeguard the security of citizens and free them from the threat of terrorism or other risks to life. It would be wonderful if there were a nice, absolute and clear division between those two objectives but, sadly, in the real world there seldom is.

The Bill as drafted had not got the balance right. It was tipping towards the state’s ability to access or use legally privileged information. Since then, as the Minister outlined, the amendments to Clause 2, an overriding clause which should circumvent all the powers in the Bill, will significantly safeguard privileged material. It is not an absolute, but we acknowledge movement here and in other amendments, such as the public interest test needed before approving a warrant. It would require both the Secretary of State and a judicial commissioner to be satisfied that the public interest in obtaining the information outweighed that long-standing public interest in maintaining the confidentiality of legally privileged communications, but also, importantly, that there were no other reasonable means of obtaining the required information.

Similarly, we welcome Amendment 25, by which, when a warrant is requested to prevent or detect serious crime, the exceptional compelling circumstances have to relate to national security or preventing death or significant injury, and do not, as with some of the other powers, include being in the interests of the UK’s economic well-being. We are also pleased that the commissioner would have to be informed when any privileged material is retained by an agency and note that, as has just been mentioned, it can be ordered to be destroyed or for conditions to be imposed on its disclosure.

We are, however, sympathetic to the desire of the noble and learned Lord, Lord Mackay of Clashfern—I cannot believe he really called himself less luminous—to allow the commissioner to differentiate between advice and, for example, the time when a phone call was made, which could be incredibly important but irrelevant to the content of the phone call. If there is a way to enable the commissioner to differentiate in that way, we hope that the Government will respond to that positively.

Finally, with regard to the so-called inequity exception, we note that any application for a warrant under this provision would have to set out the grounds for believing that communications are being made with the intention of furthering a crime, and we welcome that.

We are mindful that representatives of lawyers—speaking on behalf of their clients, because it is their interests that we are discussing—feel that the Government have not gone far enough to meet their concern. We acknowledge that, on paper, an enormous amount of progress has been made. Our concern is whether the resources, culture and mindset of the IPC will allow for the scrutiny and challenge that the words now on paper will require. I am reassured by the fact that the judicial commissioners are not just lawyers but very experienced and senior ones, so they will have a background of understanding the legal profession’s fears and long-standing views about this matter. Perhaps, when replying, the Minister, in addition to responding to the wider points made, can give an assurance that the commissioner and judicial commissioners will be appointed with a view to guaranteeing their complete independence and with sufficient resources to be able to look at these significant and demanding issues with due care and attention.

[Lord Keen of Elie]

My Lords, I am obliged to noble Lords. I begin by looking at Amendments 27 and 88, which seek to insert the word “clearly” in the public interest test. On this point I concur with the observations of the noble Lord, Lord Carlile of Berriew, that there is a danger that this would simply muddy the waters and not clarify.

The test as set out in the government amendment is straightforward. The public interest in obtaining the information sought either outweighs the public interest in maintaining the confidentiality of privilege or it does not. If the word “clearly” were inserted, that certainty would be lost. We would have to try to define what we mean by “clearly”. Logic suggests that it means that one public interest test should outweigh the other by a certain amount, as indicated by the noble Baroness, Lady Hamwee, but it is not apparent what that amount would be. This would undoubtedly lead to confusion and uncertainty. Given that such a warrant can be sought only in exceptional and compelling circumstances, where national security or life and limb are at risk, confusion and uncertainty are one thing that we cannot afford.

The government amendments set out in detail what is intended by “exceptional and compelling”. The test is explicit on the face of the Bill and it is one that works. We are also introducing a requirement for the codes to include additional information about when circumstances are to be considered exceptional and compelling, and requiring the Investigatory Powers Commissioner to keep that language under review. It is in these circumstances that I invite the noble Baroness not to press her amendments.

The second set of amendments in this group—Amendments 56, 57, 192 and 193—seek to change the power of the Investigatory Powers Commissioner to determine what happens to legally privileged material when it has been obtained by an agency and the agency wishes to retain it. First, they would provide that the commissioner has the power to impose conditions on the use of the item as well as its disclosure. Secondly, they would also require the commissioner to direct that any privileged material that has been obtained must be destroyed unless there are exceptional and compelling circumstances that justify its retention. These amendments raise important issues in respect of legally privileged material that is inadvertently obtained and where the agency wishes to retain it. I would like to reflect further on our consideration of these points today and to return to this issue at Third Reading.

Amendment 107 deals with communications data and seeks to provide for judicial approval of authorisations for the communications data of a person who is or is likely to be a practising legal professional. It seeks to reflect the protections provided in Part 3 of the Bill for the identity of a journalistic source, but in practice this amendment goes much further by attaching the protections to the profession rather than to the sensitive information they manage. The debates in the House of Commons and at previous stages in this House have been clear that Parliament’s view is that protection should attach to the sensitive communication or to the function being carried out and should not simply apply to the person because they are a member of some profession. For example, there was consensus that protection should apply to the journalist’s communications with a source or the client’s communications with a lawyer. This amendment would go against that consensus by providing protection to a lawyer simply because he is a lawyer.

The Bill takes a reasoned and balanced approach. It applies additional protections where appropriate; provides for judicial authorisation of the most intrusive powers and for the use of less intrusive powers in the most sensitive circumstances; and provides a powerful and robust oversight regime to ensure that powers cannot be misused. The protections provided are specific to each power under the Bill, applying protection which is appropriate to the level of intrusion represented by each power. The draft Communications Data Code of Practice sets out the additional considerations that must be taken into account when any data relate to a member of a profession which routinely holds items subject to legal provision. Indeed, Schedule 7 to the Bill requires that the code shall include such detail. In addition, the current amendment to Clause 2 puts beyond doubt the importance of taking particular care in relation to sensitive information, such as items subject to legal privilege.

Our debate has already shown the importance that the Government place on the protection of legally privileged material, but I would suggest that it is not appropriate to introduce these additional protections within the context of authorisations for communications data. I invite the noble Baroness not to press Amendment 107.

Amendment 55A, tabled by the noble and learned Lord, Lord Mackay of Clashfern, seeks to amend government Amendment 55. This amendment would require the Investigatory Powers Commissioner to direct that any material obtained that is subject to legal privilege must be destroyed and allow the agency to retain only material that is incidental to that which is privileged.

I have already indicated in response to Amendment 57, proposed by the noble Baroness, Lady Hamwee, that I am minded to look again at whether there is more we might provide on the face of the Bill regarding the test that the commissioner should apply when making a decision about whether material can be retained. However, I would respectfully suggest that what the noble and learned Lord proposes with this amendment is not appropriate in the circumstances. It is the case that the vital intelligence that an agency may require could intrude not only on incidental material in a legally privileged communication but on the legally privileged communication in general.

I take up the example which the noble and learned Lord gave of the individual communicating with a lawyer and asking, “Can I be extradited from Greece?”. One might say, in a very straightforward fashion, that the relevant intelligence there is Greece, not that he may or may not be extradited. But what if the communication goes like this: “Can I be extradited from Greece or Albania?”, and the answer is, “You can be extradited from Greece but you cannot be extradited from Albania”. Just giving them Greece and Albania will not assist the intelligence services very much. On the other hand, the legally privileged information that he can be extradited from Greece but cannot be extradited from Albania might lead the reasonable intelligence officer to infer that the individual was more likely to be found in Albania than in Greece. It is in those circumstances that I suggest that one cannot easily divide between the two. As I have indicated, we are conscious that in these areas we can look again to see whether we can strengthen these matters. At this stage I would invite the noble and learned Lord not to press his amendment.

[Lord Mackay of Clashfern]

My Lords, I am extremely happy that the noble and learned Lord should look at this matter further. To take his example on Greece and Albania, I think the correct way to deal with that would be to say that it was an inference from the legal advice that he might be going to Albania and you could separate that out from the advice itself as a matter of edit, allowing for inferences from the nature of the arrangement. I think that a little bit of, shall I say, creative editing would make this possible. I am very keen to conserve the idea that legal professional privilege is absolute—that is the purpose of my amendment. I believe that with a bit of ingenuity the Government could devise a formula that would allow that to happen. In the meantime, I am happy not to press my amendment on the basis that it will be considered by the Government, and if necessary, I can return to it at Third Reading.

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Moved by

[Lord Keen of Elie]

23: Clause 27, page 21, line 14, at end insert—
“( ) In deciding whether to issue the warrant, the person to whom the application is made must have regard to the public interest in the confidentiality of items subject to legal privilege.”

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Moved by

[Lord Keen of Elie]

26: Clause 27, page 21, line 24, at end insert—
“( ) For the purposes of subsection (3)(a), there cannot be exceptional and compelling circumstances that make it necessary to authorise or require the interception, or the selection for examination, of items subject to legal privilege unless—(a) the public interest in obtaining the information that would be obtained by the warrant outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) in the case of a warrant considered necessary as mentioned in section 20(2)(b) or (3) or (as the case may be) 21(4), obtaining the information is necessary for the purpose of preventing death or significant injury.”

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[Baroness Hayter of Kentish Town]

My Lords, I was about to congratulate the noble Lord, Lord Butler, on his excellent drafting of the amendments but he has slightly given away that it was not all done by his own fair hand. However, if the look on the Minister’s face is indicating that the Government might accept the amendments, we are delighted that the noble Lord’s influence from this House seems to be keeping pace with the influence that he had in his previous occupation. We are very content to support the amendments.

[Lord Keen of Elie]

My Lords, we welcome the chance to revisit this important issue, which was debated in Committee.

In putting beyond doubt that deliberate wrongdoing in relation to the bulk powers will be subject to clear, criminal sanction, we accept that these amendments will provide clarity on a crucial issue. We also believe that they have been drafted in such a way that, rightly, they would not criminalise honest, well-intentioned mistakes by the staff of our security and intelligence agencies, who do so much to keep us all safe. As such, we believe they strike the right balance and are to be welcomed. Therefore, we are happy to accept the amendments.

Amendment 58 agreed.

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Moved by

[Lord Keen of Elie]

60: Schedule 3, page 218, line 25, leave out from “if” to end of line 27 and insert “restrictions imposed under section 19 of that Act are in force prohibiting attendance at the proceedings by any person who is not—
(a) a member of the panel of the inquiry,(b) a person appointed as legal adviser to the inquiry,(c) a person who is a relevant party to the proceedings,(d) a person representing such a person for the purposes of the proceedings, or(e) a person performing functions necessary for the proper functioning of the proceedings.”

[Lord Keen of Elie]

My Lords, I shall now introduce a number of government amendments concerning the disclosure of information in relation to warrants.

Amendments 60 and 61 clarify those persons who may be present during restricted proceedings of an inquiry, as provided for under the Inquiries Act 2005, when intercept material is disclosed or examined. The proposed changes make it clear that intercept material can be disclosed in restricted proceedings only if restrictions are in place to prohibit attendance by anyone other than those individuals listed in Amendment 61.

I move on to Amendment 62. Clause 54 imposes a duty not to make unauthorised disclosures in relation to warrants issued under Part 2 of the Bill or Chapter 1 of Part 1 of the Regulation of Investigatory Powers Act 2000. Clause 55 sets out the circumstances in which such a disclosure is permitted. This amendment corrects a minor error in relation to Clause 55, which would allow a person to whom a mutual assistance warrant is or was addressed to authorise a disclosure of material in relation to the warrant if it was in accordance with a statutory purpose. The person referred to here would be a competent authority outside the United Kingdom, such as a foreign law enforcement agency. We do not wish to allow for such a disclosure and the amendment simply removes the ability of a person to whom a mutual assistance warrant is or was addressed to authorise a disclosure in relation to that warrant.

Amendments 63 and 93 do not change the meaning of Clauses 55 and 125 but simply clarify the excepted disclosure provisions in the Bill. This minor change makes it clear that a disclosure of information made by a legal adviser in relation to a warrant is not an “excepted disclosure” where the intention is to further a criminal purpose.

Amendments 64 and 94 relate to Clauses 55 and 125, which provide for certain disclosures to be made in relation to warrants. These amendments propose changes to the regulation-making power by which the Secretary of State may provide for permitted disclosures of statistics in relation to warrants.

These changes will permit communications service providers to publish greater statistical detail about the warrants to which they have given effect. The regulations may, for example, permit companies to publish not only data regarding the number of warrants to which they have given effect but details relating to the number of customer accounts that are subject to warrants issued under the Bill. This demonstrates the Government’s commitment to ensuring that, in addition to improving the safeguards around the use of investigatory powers, we are also increasing transparency by providing for more information to be made available to the public on the number of times these powers have been used. Accordingly, I invite noble Lords to support these government amendments, technical as they are.

Amendment 60 agreed.

Investigatory Powers Bill

Lord Keen of Elie Excerpts

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

[Baroness Hamwee]

The noble Lord made a very persuasive case for this amendment and I do not think that he will be surprised to be supported by these Benches, given our concerns about internet connection records—so any further constraint on them is something that we would welcome. But he went into far more detail than that and we support him.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, the Government have consistently recognised that care must be applied to the acquisition of internet connection records and, importantly, that they should not be acquired for trivial purposes. That is why we brought forward amendments in Committee to put in place a number of restrictions to provide reassurance that the powers to acquire internet connection records would only ever be used proportionately. These amendments included a threshold which would mean internet connection records could only be used to investigate certain crimes which could attract a sentence of at least six months’ imprisonment.

This amendment raises the threshold for offences which are sufficiently serious that an offender can be sentenced to at least 12 months’ imprisonment, rather than six. The amendment rightly leaves unchanged the important exceptions in the Bill to the crime threshold. The House has recognised the need to ensure that internet connection records can be obtained for the investigation of certain specified types of crime—for example, those relating to cyberbullying and harassment, and those relating to a breach of a person’s privacy—which, for whatever reason, carry a lower sentencing limit.

We recognise that this amendment will provide further reassurance and ensure public trust in the use of these vital powers, whose value and importance have been widely recognised and acknowledged. In these circumstances, we are therefore content to accept the amendment.

Amendment 100B agreed.

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[Baroness Hamwee]

My Lords, Amendment 117B is grouped with government Amendments 118 and 130. It aims at the same thing, but I think that the Government’s aim is better than ours in Amendment 117B. The amendments are about the retention of third-party data, so in order to move the business on we are very happy to support the government amendments in this group. I beg to move.

[Lord Keen of Elie]

My Lords, I do not understand why the noble Baroness wishes to insist on Amendment 117B.

Sorry, I am getting a great deal of advice from around the Chamber, and it is all immensely helpful.

Perhaps I may explain the purpose of government Amendments 118 and 130. As I said in Committee, we have been making good progress on drafting a clause that could put into the Bill the Government’s clear commitment that we will not require a telecommunications operator to retain third-party data.

It is important to be clear exactly what we are referring to as third-party data. Where one telecommunications operator is able to see the communications data in relation to applications or services running over its network but where it does not use or retain that data for any purpose, then it is regarded as third-party data. For example, if you use an internet access provider such as a home broadband provider to use the internet to log into a separate email provider in order to send an email, the broadband service might be able to see your access communications data in relation to the email service. If that information was not used or retained for any purpose by the broadband provider, the data would be considered to be third-party data.

I am pleased to say that we have now produced a clause that prohibits the retention of third-party data. We have tested this drafting with operational partners and with those telecommunications operators likely to be affected by the legislation and we are confident that it delivers the desired effect. That being so, the Bill essentially replicates the current position in RIPA, which is that data that already exist and could save a life or convict a criminal and so on can be accessed, but we are not insisting that data should be retained.

In these circumstances and in light of the opening observations by the noble Baroness, I commend government Amendments 118 and 130 in the event that we proceed.

[Baroness Hamwee]

I am sorry to have confused the noble and learned Lord. I was simply trying to explain that we are seeking to achieve the same thing, but that the Government have done better than we have. I beg leave to withdraw the amendment.

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Moved by

[Lord Keen of Elie]

118: Clause 84, page 66, line 29, at end insert—
“(3A) A retention notice must not require an operator who controls or provides a telecommunication system (“the system operator”) to retain data which—(a) relates to the use of a telecommunications service provided by another telecommunications operator in relation to that system,(b) is (or is capable of being) processed by the system operator as a result of being comprised in, included as part of, attached to or logically associated with a communication transmitted by means of the system as a result of the use mentioned in paragraph (a),(c) is not needed by the system operator for the functioning of the system in relation to that communication, and(d) is not retained or used by the system operator for any other lawful purpose,and which it is reasonably practicable to separate from other data which is subject to the notice.”

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[Lord Rosser]

The effect of this amendment, as has been said, would be to leave out internet connection records from the definition of “relevant communications data” in Clause 84, which covers powers to require the retention of certain data. The Bill has had extensive pre-legislative scrutiny, including by a Joint Committee of both Houses, and we supported it at Third Reading in the Commons subject to, among other things, amendments being made which addressed the issue of access to internet connection records not being used in relation to minor crimes. Our amendment on the definition of “other relevant crime”, which raised the threshold from six months to 12 months, has been accepted by the Government. We will be opposing an amendment that now appears to weaken the effectiveness of the provisions relating to internet connection records, at least under Part 4 of the Bill, specifically Clause 84.

[Lord Keen of Elie]

My Lords, the amendment would prevent the Government being able to require telecommunications operators to retain internet connection records. The noble Lord, Lord Paddick, tabled exactly the same amendment in Committee, and he will not be surprised to know that the Government still cannot support such an amendment. As the noble Lord, Lord Harris of Haringey, and the noble Baroness, Lady Harding, observed, these provisions may not give rise to a perfect system of record recovery but it is preferable to a dark hall where criminals move unseen and with impunity.

The noble Lord, Lord Paddick, talks of observations from the Security Service and the Secret Intelligence Service, but be it noted that it is not for them that these records are so essential; it is for the police forces and the enforcement agencies in respect of crime. I have spoken at length to the National Crime Agency, which has underlined to me the critical nature of these records now that telecommunications data are so often routed through the internet, not by means of normal telephony.

Earlier today this House recognised the importance of the use of internet connection records, subject to strict safeguards, as noted by the noble Lord, Lord Rosser. I do not think this House will want to prevent internet connection records being retained with the result that they are not available for any form of criminal investigation. Indeed, we have just discussed the government amendment to require judicial approval before a data retention notice can be given, which, as I said at the time, puts in place a significant new safeguard before a telecommunications operator can be required to retain the data.

There has been considerable debate on this topic, not just today but as the Bill has progressed through Parliament. However, in relation to this amendment, I should perhaps reiterate why internet connection records are so essential for law enforcement. As communications increasingly take place via the internet, information that used to be routinely available to law enforcement from telephone-based communications data is increasingly unavailable—for example, the identity of an individual suspected of sharing indecent images, or people with whom a missing person was last in contact. Internet connection records are essential because they will ensure that the type of communications data that were previously available to law enforcement will remain available in future, not perfectly but generally. It will help to ensure that terrorists and criminals cannot evade detection simply because they choose to communicate online.

The noble Lord, Lord Paddick, observed that there may be applications or social media apps on a device that maintain a persistent connection to a service. That is true, but even in such cases the relevant ICR will signpost the service access by the device, enabling a public authority to make further inquiries with the service provider, which is identified through the ICR. ICRs will allow law enforcement to approach online service providers to acquire communications data where it is known that a specific device has accessed their service. So it is not the case that simply because you have open or permanent connections, the use of ICRs is rendered useless; that is simply not accepted.

The alternatives available to the security and intelligence services are not available to the police, and certainly cannot be adduced in a court of law. The police can acquire communications data only on a case-by-case basis where necessary and proportionate, and where they have made strong operational cases as to why they need to retain these records. Equally, the intelligence agencies may acquire data only for their own statutory purposes, which are far narrower than the criminal types investigated by the police. It is also the case, as I mentioned before, that intercept material from the agencies may not be used as evidence in court, a position that has been upheld by numerous independent inquiries over the years, most recently by a panel of the Privy Council in 2014.

Giving evidence to the Public Bill Committee, the noble Lord, Lord Reid, and Charles Clarke, previous Home Secretaries, were asked whether ICRs were a key part of updating legislation to the current world, and they both definitely agreed. Indeed, one could go further. The noble Lord, Lord Paddick, alluded to the observations of the Joint Committee on the draft Bill. Let us look at its conclusion:

“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.

The Government recognise the sensitive nature of internet connection records, which is exactly why we had our earlier debate concerning the safeguards that must surround their recovery. The point has already been made that those records will not give access to the content, it is the record of connection that will be recovered.

I appreciate that the noble Lord, Lord Paddick, still has concerns about internet connection records, and I fear that nothing I say will convince him otherwise, but I again reassure him that we have all the right safeguards in place. Data can be retained only when necessary and proportionate and following authorisation and approval by the Secretary of State and a judicial commissioner. We have mechanisms in place to ensure that data are held securely, including audit by the Information Commissioner. Once the data are retained, they can be accessed only on a case-by-case basis, and only when judged necessary and proportionate by a senior officer at a rank specified by Parliament who is independent of any investigation being carried out. Strong judicial oversight will be provided by the Investigatory Powers Commissioner and, thanks to the changes made by this House, internet connection records cannot be acquired for minor offences, an amendment we discussed earlier.

In summary, internet connection records are a vital power. As to their cost, I believe that the figure given at a previous stage was £174 million over a period of 10 years. That is a not inconsiderable sum, but a manageable figure in the context of what we face with police powers. Accordingly, I invite the noble Lord to withdraw the amendment.

Investigatory Powers Bill

Lord Keen of Elie Excerpts

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

Moved by

[Lord Keen of Elie]

133: Clause 205, page 162, line 7, at end insert—
“(8A) Subsection (8) does not apply to the function of the Investigatory Powers Commissioner of making a recommendation under subsection (4)(e) or making an appointment under section (Members of the Panel)(1).(8B) The delegation under subsection (8) to any extent of functions by the Investigatory Powers Commissioner does not prevent the exercise of the functions to that extent by that Commissioner.(8C) Any function exercisable by a Judicial Commissioner or any description of Judicial Commissioners is exercisable by any of the Judicial Commissioners or (as the case may be) any of the Judicial Commissioners of that description.(8D) Subsection (8C) does not apply to—(a) any function conferred on the Investigatory Powers Commissioner by name (except so far as its exercise by any of the Judicial Commissioners or any description of Judicial Commissioners is permitted by a delegation under subsection (8)), or(b) any function conferred on, or delegated under subsection (8) to, any other particular named Judicial Commissioner.”

[Lord Keen of Elie]

My Lords, this group contains a variety of government amendments relating to oversight arrangements.

Amendments 133 and 149 clarify the delegation of functions by the Investigatory Powers Commissioner or judicial commissioners. They make clear that certain judicial functions of the IPC or judicial commissioners cannot of course be delegated to staff. The amendments also make clear that, where the Bill requires a judicial commissioner to undertake a task, any of the judicial commissioners can perform that duty. However, the IPC can still delegate a function or functions to an individual judicial commissioner in order to create a de facto deputy, should he wish to do so. Delegation of certain functions is sensible and allows for a flexible and efficient working environment. Of course, it would be inappropriate if the IPC could delegate to a judicial commissioner the ability to recommend individuals to be appointed as judicial commissioners and so this function is reserved to the IPC.

Amendment 149 puts beyond any doubt that the inspectors and expert advisers who work for the Investigatory Powers Commissioner or a judicial commissioner will be working with their full delegated authority. This responds to concerns raised by the noble Baroness, Lady Hamwee, in Committee. We have been clear that the Investigatory Powers Commissioner will lead a powerful new oversight body which will rely on the work of inspectors and technical experts alongside the commissioners themselves. Those working under the authority of the commissioner will have the same right to access and interrogate information that the commissioners themselves would have. This amendment puts that beyond doubt. It makes it clear that commissioners can, formally and in accordance with statute, delegate some of their functions to the staff working for them.

However, it is right that not all functions should be capable of delegation. There are some activities and decisions, such as decisions to approve the use of powers, that should rightly be undertaken by judges. Therefore, this amendment also prevents those types of activities and decisions from being delegated to members of staff. These amendments strike the right balance between allowing members of staff to claim the full authority of the commissioner while reserving key judicial functions to those who are appropriately qualified to undertake them. I hope that that brings some satisfaction to the noble Lord, Lord Paddick, who was concerned to anticipate whether these amendments would go as far as he hoped; I believe that they do.

Amendment 135 is intended to provide further clarity about when a commissioner does not need to consider the duties set out in Clause 207(6) and (7). I hope that the House will agree that while the Investigatory Powers Commissioner and the judicial commissioners who will be working for him or her will be performing vital functions, it is important that the actual performance of those functions does not damage the public interest. Subsections (6) and (7) set out a number of duties on the commissioner: for example, that they should not act in a way that in their own opinion is prejudicial to national security, nor should they act in a way that they consider would compromise the safety of those involved in a security operation.

When the Joint Committee on the Draft Investigatory Powers Bill considered the first incarnation of this clause, it expressed concern that the duty placed on the commissioners as set out in these subsections was too broad. The Government then carefully considered this clause and agreed that there should be occasions on which a commissioner was not caught by these additional duties. For example, we put it beyond doubt that a commissioner could refuse to approve the decision to issue a warrant without worrying that they were breaching their duties in relation to national security. This amendment goes further still along that same path. It increases the list of circumstances in which a judicial commissioner will not be subject to the duty contained in subsections (6) and (7). The amendment expands the list to include all circumstances in which a judicial commissioner could be said to be exercising a “judicial function” or taking a judicial decision. I hope that this provides the House with further reassurance that we do not intend subsections (6) and (7) to be unduly limiting upon the important work of the commissioners.

Clause 223 provides for membership of the Technical Advisory Board, a non-departmental public body that advises the Secretary of State on cost and technical grounds if a notice given under Parts 4 or 9 of the Bill is referred by a telecommunications operator for review. Membership of the board must include a balanced representation of those on whom obligations may be imposed by virtue of notices and of those persons entitled to apply for warrants or authorisations under the Bill. At present, subsection (2)(a) of this clause requires that the membership of the board must include persons on whom obligations could be imposed by virtue of a data retention notice or technical capability notice—namely, telecommunications operators. Government Amendment 177 makes a minor change to this provision to add persons on whom obligations could be imposed by a national security notice. The amendment will not change the scope of the persons who must be represented on the board; indeed, a national security notice may only be given to a telecommunications operator. However, this minor change will make the meaning of the provision more clear.

Amendment 136 is a minor amendment to Clause 207, clarifying the policy intention that the Investigatory Powers Commissioner should be able to review the decisions of other judicial commissioners should this be necessary.

Amendments 137, 263 and 274 move the definition of a “statutory function” to Clause 239 alongside other definitions.

I turn now to Amendment 146. In Committee, the noble Baroness, Lady Hamwee, sought further clarity as to precisely who is covered by the definition of a “member” of a public authority. Having reflected on the matter, I can see that perhaps this definition is not as clear as it could be. Therefore, the Government have introduced this amendment to be clear that everyone who works for a public authority or who has worked for a public authority in the past will have to provide the IPC with all necessary assistance. I hope that that gives the House reassurance that the IPC will be able to hold those public authorities properly and clearly to account.

Amendment 147 is intended to put beyond doubt the fact that the Investigatory Powers Commissioner will have access to advisers, be they legal, technical or of any other nature, that the commissioner feels is necessary to undertake their statutory functions. This amendment provides that the Secretary of State, after discussion with the IPC, must provide the commissioner with services as well as with staff, accommodation, equipment and facilities. I would like to be clear, though, that the commissioner will be entirely free to choose their own advisers and that the Secretary of State will merely supply the resources to pay for those advisers. This will allow the commissioner flexibility to “buy in” whatever advice they need at whatever time.

Amendments 154 to 156 are technical amendments providing additional certainty around the definition of the chief and other surveillance commissioners who are being abolished by the Bill and replaced by the Investigatory Powers Commissioner.

Clause 221 already makes a number of amendments to Sections 65, 67 and 68 of RIPA in relation to the functions of the Investigatory Powers Tribunal. Amendments 163 to 175 are further technical amendments simply updating the relevant provisions of RIPA to ensure that it is clear that the Investigatory Powers Tribunal has the jurisdiction to investigate any claims or complaints relating to the provisions of the Investigatory Powers Bill. I beg to move.

[Baroness Hamwee]

My Lords, we welcome the amendments in this group. The provisions on delegation are indeed extremely helpful, as we were concerned about the chain of command and chain of responsibilities. I am glad to see the little amendment about being a “member” of a local authority—or HMRC, which I think was the other example I used. I had thought I was maybe going a bit too far in raising that point, but I am glad that I did. I am also glad to see the insertion of the reference to services for the IPC, which we were also concerned about. Having said that, we are happy with these amendments.

--- Later in debate ---

[Lord Rosser]

I appreciate that I may be speaking prematurely since the Government have not moved their amendment on the Technology Advisory Panel. On the basis that they are not about to stand up and withdraw it, I thank the Government for the amendment establishing a Technology Advisory Panel, which reflects the recommendation by David Anderson QC in his report on the bulk powers provisions in the Bill, a report that we had secured during the passage of the Bill in the Commons and a recommendation on which we had an amendment in Committee in this House.

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Rosser, and will resist the temptation that he laid in my path. As he observed, the government amendments have been tabled to give effect to the recommendation of David Anderson’s bulk powers review.

The review demonstrated that the bulk powers are crucial. Mr Anderson’s report concludes that the powers,

“have a clear operational purpose”,

and,

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

and that, where alternatives exist to their use,

“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or – crucially – slower”.

The review also concludes that bulk powers are vital across the full range of security and intelligence agency activity, including counterterrorism, cyberdefence, combating child sexual exploitation and organised crime, and supporting military operations; and that they have been used to disrupt terrorist activity, prevent bomb attacks, facilitate the rescue of hostages, thwart cyberattacks and save lives.

Mr Anderson’s report included a single recommendation, which was:

“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—

that is, the Investigatory Powers Commissioner—

“to advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability and development of techniques to use those powers while minimising interference with privacy”.

Following careful consideration of this recommendation, we agree with Mr Anderson’s assessment that those authorising, approving and overseeing the exercise of bulk powers must be alert to the impact of technological change on those powers’ utility and impact. These amendments therefore give effect to Mr Anderson’s recommendation in full.

The amendments provide that a Technology Advisory Panel must be established by the Investigatory Powers Commissioner and, in line with Mr Anderson’s recommendation, members of the panel would be appointed by, and clearly accountable to, the commissioner. They also provide that the role of the panel is to advise the Investigatory Powers Commissioner, the Secretary of State and Scottish Ministers on precisely those matters set out in David Anderson’s recommendation —namely, the impact of changing technology on the exercise of investigatory powers, and the availability and development of techniques to use such powers while minimising interference with privacy. The Investigatory Powers Commissioner would have the power to direct the panel to provide advice on any issue relevant to these matters.

While David Anderson’s review was in relation specifically to the bulk powers in the Bill, we agree with his view that there is no reason to restrict the scope of the Technology Advisory Panel just to those powers. Indeed, the panel giving advice in relation to the targeted powers could be just as valuable. As such, the amendments make clear that the panel’s role would extend to providing advice on all investigatory powers whose exercise is subject to review by the commissioner, which of course includes all the investigatory powers under the Bill.

To ensure that the panel would be able to undertake its role effectively, the amendments also make clear that its members would have the same right to access information as judicial commissioners. This means that any relevant person, such as any member of a public authority, must disclose or provide to a member of the panel all such documents and information as that member may require in order to carry out their functions.

We also agree with David Anderson that it should be mandatory for the Technology Advisory Panel to produce an annual report on the exercise of its functions. The amendments would therefore require that the panel make such a report to the Investigatory Powers Commissioner as soon as reasonably practicable at the end of each calendar year. At the same time as providing the report to the commissioner, a copy would also need to be sent to the Secretary of State and to Scottish Ministers where the report related to matters for which Scottish Ministers are responsible. To ensure sufficient transparency about the panel’s work, the amendments would require the Investigatory Powers Commissioner to include information about the work of the panel in their annual report.

I turn to the opposition amendments that have been tabled to the new clause establishing the Technology Advisory Panel. The first of these amendments would expand the role of the panel explicitly to provide advice to the commissioner on safeguards. While I appreciate what is intended by the amendment, I do not think it is necessary. The panel’s role is to advise on the impact of changing technology on the exercise of investigatory powers. Therefore, if technology changes in a way which means that existing safeguards are no longer appropriate or if new safeguards are needed to protect privacy, the panel can provide such advice to the commissioner and the Secretary of State. The panel must provide advice when asked to do so, but may also provide advice as it considers appropriate. While I appreciate the intent behind the amendment, I believe that the clause as drafted already provides for such advice to be given by the panel. Therefore, I do not believe that the noble Baroness’s amendment is necessary.

The second amendment to which she referred would expand the role of the panel to provide advice on an additional matter, namely,

“the impact of changing technology on the interpretation of the law and any amendments to legislation required to ensure the application of the provisions of this Act to changed technology”.

This amendment is neither necessary nor desirable. The role of the panel would, rightly, be squarely to provide advice on the impact of technology on the exercise of investigatory powers. This clearly defined role will ensure that members of the panel will be exactly what we need them to be: technical experts. David Anderson’s recommendation was designed to fill a gap. He was conscious that the Investigatory Powers Commissioner and judicial commissioners will be senior judicial figures. So, while they will be experts in the law and the interpretation of the law, they will not necessarily be experts in technology. What he felt was needed, and what the Government agree is needed, is technical experts to provide technical advice. In seeking to expand the panel’s remit to provide legal advice as well, I strongly fear we would end up with lawyers rather than technical experts. Indeed, David Anderson specifically warned that,

“the technological expertise of the TAP should not be unduly diluted”.

I pause to wonder whether one could ever dilute something with a lawyer, but I continue. That is exactly what this amendment would do, and that is why we firmly believe that it should be resisted.

This brings me to the amendment, which would permit the commissioner to make a report on his or her views about the legal operation of the Bill but would not place a duty on the commissioner to do so. I appreciate the sentiment behind the amendment, but I believe it is unnecessary. Clause 212 already gives the Investigatory Powers Commissioner a very wide remit to report on any matter relating to the functions of the judicial commissioners. That will, of course, permit the IPC, as he or she thinks fit, to report on the legal interpretation of the Bill. However, I hope that the IPC will not feel it necessary to do so, or at least to do so often. That is because the Bill serves to put beyond doubt the powers available to the state and the safeguards that apply to them. In the words of David Anderson, the Bill,

“restores the rule of law and sets an international benchmark for candour”,

but if the commissioner felt the need to report on the legal operation of the Bill, he could already do so.

Finally, Amendment 178C would require the panel to have regard to the same matters which a public authority must have regard to, as set out in Clause 2, which is referred to as the privacy clause. I appreciate the spirit of this amendment, but I believe it is unnecessary. Clause 2 is already clear that whenever exercising certain powers, such as to authorise warrants, all public authorities must have regard to the issues outlined in the privacy clause, but of course the Technology Advisory Panel will not be exercising such powers, so the amendment does not, in that context, make sense. If the intention is that when the panel gives advice it should bear in mind the various privacy considerations contained in Clause 2, then the amendment is also unnecessary, since the requirement, contained in government Amendment 178, that the panel advise on,

“the impact of changing technology on the exercise of investigatory powers”,

already includes advising on the ability to exercise those powers within the statutory framework and subject to all the safeguards contained in the privacy clause. Of course, the whole point of the Technology Advisory Panel, as specified in the government amendment, is to advise on techniques to “minimise interference with privacy”. So I really think that this amendment is unnecessary.

I invite the noble Baroness to withdraw the amendment.

[Baroness Hamwee]

My Lords, with the leave of the House, I recognise that this is Report stage. I was aware, of course, that the panel will not be a public authority, and that is why I framed Amendment 178C as I did: the Technology Advisory Panel would need to,

“have regard to the matters”,

in Clause 2, rather than be bound by them. I suggested the amendment because subsection (1)(b) of government Amendment 178 talks about, “minimising interference with privacy”, and that seemed to me not nearly as strong as the privacy clause, Clause 2, which we took to bits but welcomed earlier in the passage of the Bill. I beg leave to withdraw Amendment 134A.

--- Later in debate ---

[Lord Beith (LD)]

To pose a legal challenge which is not based on any instance or evidence of the basis on which such a challenge could be made—I certainly cannot think of a basis on which someone could require the production of knowledge of the means used for interception, based on existing legislation.

[Lord Keen of Elie]

Amendment 137A seeks to insert a provision into the Bill that would require the Investigatory Powers Commissioner to notify the subject of a targeted interception or equipment interference warrant in certain circumstances. The amendment tries to tightly draw those circumstances, and I am grateful to the noble Lord, Lord Paddick, for recognising in drafting it that a significant number of factors should rightly preclude such notification from taking place. Nevertheless, I still think the amendment could threaten to undermine the capabilities that law enforcement and the security and intelligence agencies rely on to pursue the most serious wrongdoers. The amendment recognises that notifying a person that they have been the subject of surveillance may have an immediate impact on an investigation—or it may have damaging effects on the public interest or national security more broadly.

That being the case, it is extremely difficult to envisage a scenario where notification could responsibly be allowed to occur. Notifying a person that their communications have been intercepted, irrespective of whether that notification included any further details about the methods used, would necessarily risk hindering a future investigation. For example, there will be circumstances where a terrorist or serious criminal who was previously the subject of a warrant will no longer be an active suspect in an investigation. Advising that individual that they have been the subject of interception may help them to evade detection if they were minded to return to or resume criminal activity.

On one reading, then, the amendment would not provide for disclosure other than where a person has been the subject of deliberate wrongdoing or a serious error. If that is the intention behind the amendment—and I fear it is not—it is redundant, because there is already provision in the Bill to notify people who have been the subject of serious errors.

The alternative, of course, is that the amendment should provide for individuals to be notified in a wider range of circumstances. I find that prospect troubling. As I say, it is never possible to know whether an individual will return to criminality in the future. Even if they do not, revealing the fact that they were the subject of a warrant may provide some small insight into the techniques and capabilities used by law enforcement and the security and intelligence agencies. That, in turn, would provide an avenue for the most determined and capable actors to piece together a picture of the agencies and how they work, handing an advantage to those we are working hard to pursue—let alone the prospect that they might seek disclosure by way of a review of the conduct of the authorities in order to determine exactly what methodology had been employed. For all these reasons, I hope the noble Lord will be prepared to withdraw this amendment.

I turn to Amendments 137B to 137F, which, as the noble Lord indicated, are in a sense consequential on his primary amendment, and which deal with error reporting as provided for in Clause 209. Clause 209 is of the utmost importance. It provides that if a person has been the subject of a serious error, and it would not be contrary to the public interest, the commissioner must inform that individual of the error and their right to apply to the Investigatory Powers Tribunal. The judicial commissioner must provide such details as considered necessary for the person to bring a claim.

Clause 209 seeks to maintain a very delicate balance between two important but competing interests. On one hand, there is the right of the individual who has suffered harm as a result of the error to seek some sort of redress. On the other, there is the long-standing security and intelligence agency principle of neither confirming nor denying that an individual has been the subject of investigatory powers. This principle is vital to the security and intelligence agencies, as it prevents those who would wish to do us harm launching spurious complaints and claims in order further to understand the agencies’ most sensitive capabilities. I hope the noble Lord will agree that, given the fine balance between these two principles, it is right that the decision be taken on a case-by-case basis by the commissioner, a senior member of the judiciary who will have full access to the facts on which to base their decision.

Amendments 137B and 137C would remove the commissioner’s discretion to make that judgment. He would no longer be able to consider how the wider public interest would be best served, and would instead be compelled to tell an individual if they had been the subject of a serious error, regardless of the consequences and the harm that might be caused. I do not think that is right. It is, for example, conceivable that an investigation into a dangerous criminal gang may result in action mistakenly being taken against an innocent associate of one of the gang members. That would be unfortunate, and the commissioner would undoubtedly want to ensure that remedial action was taken at an appropriate time. But before doing so, it is right that the commissioner should consider the public interest in informing the person, balanced against the risk of undermining an ongoing investigation, and that is what the clause as drafted provides for.

Amendment 137D seeks to require notification where the error has not caused serious harm or prejudice but may do so in the future. I do not think it necessary or appropriate, given the difficult balance that has to be struck here, for persons to be informed when there is such an error. This would put the commissioner in the difficult position of speculating on potential future consequences. Additionally, the commissioner does not get only one opportunity to assess the harm that has occurred. We would of course expect the commissioner to keep under review the consequences of an error and, if it resulted in harm at some point in the future, it would be open to the commissioner to inform the individual at that point. This seems a more sensible approach than putting the commissioner in the position of second-guessing what potential future consequences may one day occur or not occur.

--- Later in debate ---

Moved by

[Lord Keen of Elie]

138: Clause 210, page 167, line 21, at end insert—
“(3A) In addition to consulting the Secretary of State under subsection (3), the Judicial Commissioner must also consult the Scottish Ministers if it appears to the Commissioner that providing the advice or information might be prejudicial to—(a) the prevention or detection of serious crime by a Scottish public authority, or(b) the continued discharge of any devolved functions of a Scottish public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.(3B) In subsection (3A)—“devolved function” means a function that does not relate to reserved matters (within the meaning of the Scotland Act 1998), and“Scottish public authority” has the same meaning as in the Scotland Act 1998.”

[Lord Keen of Elie]

My Lords, I shall speak to Amendment 138 and the other amendments in this group, which would ensure that the Scottish Government are provided with appropriate means to engage with and support the work of judicial commissioners relating to devolved powers in Scotland.

Clause 210 allows a judicial commissioner to provide advice and information to any person. It requires the judicial commissioner to consult the Secretary of State first where providing advice and information might be contrary to the public interest. It is clearly appropriate that Scottish Ministers are similarly consulted if the provision of advice and information by the judicial commissioner may be prejudicial specifically to activities that fall under those Ministers’ responsibility. Accordingly, Amendments 138 and 139 would require the judicial commissioner to consult additionally the Scottish Ministers when providing information and advice that may be prejudicial to the prevention or detection of serious crime in Scotland, or the continued discharge of any devolved functions of a Scottish public authority.

Clause 216 sets out the funding arrangements for the Investigatory Powers Commissioner and the judicial commissioners. Amendment 148 would grant the Scottish Ministers the power to make such payments as they consider appropriate to judicial commissioners for work relating to the exercise of devolved functions by public authorities in Scotland. This simply maintains the current position, as the Scottish Government currently have the power to pay surveillance commissioners who carry out their functions wholly or mainly in Scotland such allowances as the Scottish Ministers consider appropriate. The surveillance commissioners will be abolished by the Bill, and their functions taken on by the Investigatory Powers Commissioner and the judicial commissioners. Accordingly, I beg to move Amendment 138.

[Baroness Hamwee]

My Lords, the noble and learned Lord may have answered one of my questions about Amendment 148. It was about whether this sort of arrangement is in place elsewhere because, on reading it, it seemed that there might be scope for some squabbles as to who should be responsible for paying how much. However, I think he said that this is already working satisfactorily under the current arrangements. My other question is about the term “allowances”, which in normal language means less than paying salaries. It does not address payment for facilities, infrastructure and so on. It seemed a curious term to use but that is probably because I do not understand quite how the system will work. Allowances, to most of us, sounds like more like an ex gratia arrangement.

[Lord Keen of Elie]

Might I be permitted to respond briefly to the noble Baroness on these points? First, these amendments have been agreed with officials in the Scottish Government and reflect an existing arrangement whereby the allowances of surveillance commissioners are determined by the Scottish Ministers in that context. “Allowances” is used there, as I understand it, because we are not relying upon them for payment of certain standing charges incurred in setting up the commissioners, for example.

Amendment 138 agreed.

Investigatory Powers Bill

Lord Keen of Elie Excerpts

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

Moved by

[Lord Keen of Elie]

180: Clause 137, page 110, line 4, leave out subsection (6)

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, Amendments 180, 181, 197, 198, 205, 206, 231 and 232 relate to judicial commissioner approval of major modifications to warrants issued under Parts 6 and 7 of the Bill. They seek to provide additional clarity regarding the matters the commissioner must review when deciding whether to approve such a modification.

The Bill already provides for major modifications to such warrants. In the context of bulk interception, bulk acquisition and bulk personal dataset warrants, a major modification may be used to add or vary one of the operational purposes for which data may be examined under the warrant. As regards bulk equipment interference warrants, a major modification can additionally add to or vary any description of conduct in the warrant.

The Bill requires full double-lock authorisation from a Secretary of State and a judicial commissioner for any major modification to a bulk warrant. These amendments will not change that. Instead, they provide greater clarity about the matters that a commissioner must consider when determining whether to approve a modification to a bulk warrant.

The amendments specify that, for major modifications to add or vary an “operational purpose”, a judicial commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary, applying the same principles as would be applied by a court on an application for judicial review and ensuring that the commissioner complies with the duties in relation to privacy set out in Clause 2, the so-called privacy clause.

In the context of bulk equipment interference, if a major modification proposes to add or vary a description of conduct, the judicial commissioner must also review the Secretary of State’s conclusions as to whether the conduct authorised by the modification is proportionate to what is sought to be achieved by it. The amendments are intended to ensure clarity and consistency across the Bill, and as such are to be welcomed.

The sharing of data and intelligence with our overseas partners is critical to the work of our security and intelligence agencies. Without working together with our allies, those agencies could not do their vital work of keeping us safe. Amendments 184, 185, 201, 202, 209 and 210 simply clarify the consideration that must be given by the Secretary of State before authorising the disclosure to overseas authorities of data acquired under the bulk powers in the Bill.

The Bill already places a duty on the Secretary of State to consider whether corresponding safeguards will be applied to the data that are to be shared with the overseas authority in relation to their retention and disclosure. These amendments make explicit that the Secretary of State must be satisfied that the overseas authority has in place safeguards, to the extent appropriate, that correspond to those in the Bill not only in respect of the retention and disclosure of the data shared in bulk but in relation to their selection for examination. This group of amendments therefore makes absolutely clear that proper consideration will be given to the examination safeguards that are applied whenever bulk data are shared with another country. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I thank the Minister for moving these amendments, all of which we are happy to support and some of which respond to concerns we raised in Committee.

It may assist the House if I outline at this stage the purpose of Amendment 185A, in the names of my noble friend Lord Rosser and myself, which is about safeguards for disclosing overseas-related material for our foreign allies and agencies. That is material, possibly including information sent overseas by UK residents, obtained by our security and intelligence services under bulk interception warrants. It is an amendment which we hope the Government will feel able to accept.

In Clause 142, before any information obtained under a bulk interception warrant is disclosed overseas, the Secretary of State must ensure that arrangements and safeguards are in place regarding the retention and disclosure of such material, as the Minister has outlined. These requirements correspond to Clause 141 safeguards for domestic arrangements: that is, requiring that the number of people to whom the bulk-intercepted material is disclosed, the extent of disclosure and the number of copies made is limited to the minimum necessary. These safeguards also require the destruction of such material where there are no longer grounds for retaining it.

However, unlike Clause 141 for domestic arrangements, Clause 142 for overseas disclosure provides a wide discretion for the Secretary of State, whereby she or he must ensure equivalent safeguards only,

“to such extent (if any) as the Secretary of State considers appropriate”.

It could, therefore, be possible for the Secretary of State to decide that no safeguards are required in a particular case.

We recognise absolutely that the UK will need to share intelligence with overseas agencies and our amendment does not undermine the ability of UK agencies to do that. We also accept that overseas disclosure may be of a different nature, with particular political, diplomatic or security implications, all of which the Secretary of State must consider. However, the present wording is surely too wide and, if I have understood it correctly, would not be subject to subsequent review. Amendment 185A removes this very broad discretion and requires that it must appear to the Secretary of State that safeguards corresponding to the requirements under Clause 141(2) and (5) will apply in relation to disclosure overseas.

The Minister will not be surprised if I make reference to the Szabó v Hungary finding that minimum standards should be set out in law to avoid abuses of power and that,

“it would be contrary to the rule of law … for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power”.

The judgment notes that,

“the law must indicate the scope of any such discretion … with sufficient clarity … to give … adequate protection against arbitrary interference”.

I hope that the Government will feel able to accept the amendment as, if anything, extra safeguards may, indeed, be required where sensitive information is being disclosed abroad. We look forward to the Minister’s response on this.

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[Lord Keen of Elie]

My Lords, as the noble Baroness, Lady Hayter, has observed, Amendment 185A would remove the Secretary of State’s discretion to consider the extent to which the application of corresponding safeguards is appropriate in relation to the sharing with an overseas authority. The Government consider that this is a vital provision and its removal from the Bill would pose a real risk to the national security of this country and other countries around the world. The threat we face from terrorism and serious and organised crime is global. It is inevitable that there will be circumstances where our security and intelligence agencies uncover threats to other countries through intelligence derived from a bulk interception warrant.

In some circumstances, such threats will be against countries with which the United Kingdom has well-established intelligence-sharing relationships, and in such circumstances there are likely to be corresponding safeguards applying to the handling of intercepted material. However, there will be occasions when such intelligence indicates a serious threat to a country overseas, potentially in urgent circumstances, whose authorities simply do not apply the same level of safeguards as those included in the Bill. In such circumstances, it is crucial that the Bill places a duty on the Secretary of State to consider the arrangements that should be in place to regulate the disclosure. This decision will need to balance the risk that the material will not be subject to the same level of safeguards that it would be in this country against the risks to the security of the country in question if material is not shared.

For example, in some circumstances a failure to share intercepted material containing vital intelligence could result in a terrorist atrocity. Even in such a scenario, the amendment would place an absolute prohibition on the relevant intercepted material being shared because the overseas authority does not apply safeguards corresponding to those in the Bill. This would not be a responsible position and I believe it is only right that the Secretary of State must be responsible for deciding the appropriate arrangements for sharing intercepted material with an overseas authority, considering the particular circumstances of each case. In addition to this consideration by the Secretary of State, the safeguards that apply to the use of bulk interception will be subject to rigorous, independent oversight and scrutiny by the Investigatory Powers Commissioner. This will, of course, include the arrangements for the disclosure of intercepted material overseas.

For the reasons I have outlined, it is absolutely crucial that the Bill provides for the Secretary of State to consider the extent to which corresponding safeguards should apply where intercepted material is being shared overseas. The amendment would fetter that consideration and is both unnecessary and potentially dangerous. Accordingly, I invite the noble Baroness not to move it.

Amendment 180 agreed.

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[Lord Rosser (Lab)]

As the noble Lord, Lord Paddick, said, David Anderson QC commented in his report that neither the Bill nor the draft code of practice rules out the future use of the bulk acquisition power for internet connection records. Internet connection records are not currently acquired in bulk but existing legislation already permits the agencies to acquire such records in bulk, albeit there appears to be no present intention to do so.

The effect of this amendment would be to remove an existing legislative provision which could be needed in the future for bulk acquisition—bulk acquisition which David Anderson QC found had contributed significantly to the disruption of terrorist operations and, through that disruption, almost certainly to the saving of lives, and which had also been demonstrated to be crucial in a variety of fields. In addition, any such application in the future to obtain such data by the security and intelligence agencies would be covered by the relevant safeguards in the Bill, including in relation to necessity and proportionality in the interests of national security and the approval process.

This Bill is, among other things, about the appropriate balance between security and privacy. We clearly have a different view from that of some other noble Lords on where that appropriate balance lies. Our view is that, for the reasons I have sought to set out, we are unable to support this amendment and, if it is put to a vote, we shall oppose it.

[Lord Keen of Elie]

My Lords, this amendment would remove the ability for the intelligence agencies to acquire internet connection records in bulk, an issue we have already discussed in Committee and revisited on a number of occasions, as observed by my noble friend Lady Harding. At the time we debated this in Committee, I highlighted the point now made by the noble Lord, Lord Rosser, that this is not a new power introduced by the Bill. This is an existing power. It exists in legislation, albeit, while it is provided for, it is not at present utilised.

As I explained in Committee, it is vital in the current climate, when methods of electronic communication are changing and developing at an exponential rate, that we provide technology-neutral legislation—a point made by the noble Lord, Lord Rooker. We remain of the view that we would not wish to legislate against the possibility of internet connection records being acquired in bulk, should the agencies make a case—and they must make a case—which demonstrates that this might be necessary and proportionate in the interests of national security.

We strongly believe that it is right that the intelligence agencies have the power to acquire communications data in bulk, and David Anderson supported this in his bulk powers review. The noble Lords, Lord Carlile and Lord Campbell of Pittenweem, alluded to the observations made by David Anderson. I will refer to only one further quotation: he said that,

“bulk acquisition has contributed significantly to the disruption of terrorist operations and, though that disruption, almost certainly the saving of lives”.

The noble Lord, Lord Carlile, alluded to some of the examples that were given by David Anderson and worked through in his report.

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Moved by

[Lord Keen of Elie]

219: Clause 186, page 145, line 36, at end insert—
“(A1) An intelligence service may not retain, or retain and examine, a bulk personal dataset in reliance on a class BPD warrant if the head of the intelligence service considers that the bulk personal dataset consists of, or includes, protected data.For the meaning of “protected data”, see section (Meaning of “protected data”).”

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[Lord Keen of Elie]

My Lords, this group contains a number of amendments specific to Part 7 of the Bill, which covers bulk personal datasets. I first turn to government Amendments 219, 220, 224, 226, 227, 229, 230, 237, 238, 239, 240 and 265, 266 and 267.

In David Anderson QC’s review of bulk powers he stated:

“It has come to my attention that some”,

bulk personal datasets,

“may contain material that is comparable to the content of communications, and in rare cases even material subject to”,

legal professional privilege. He continued:

“In the light of these facts I have already recommended to the Home Office that consideration be given to the introduction of additional safeguards to the Bill and Code of Practice”.

We welcome David Anderson’s review and the attention he has given to these matters. I stress that it is unlikely to be the case that many bulk personal datasets will contain this sort of material, but in those instances where they do, it is right that it is protected appropriately. These amendments ensure that the Bill provides such protection.

Amendment 219 explains that an intelligence agency may not use a class BPD warrant to,

“retain, or retain and examine, a bulk personal dataset”,

that consists of or includes “protected data”. Amendment 220 would insert a new clause which defines what protected data are in this context. In essence, protected data are the same class of data as “content” in the telecommunications context or “protected material” in the equipment interference context. Protected data in a bulk personal dataset may include, for example, the contents of letters, emails or other documents. They do not include identifying data—for example, data that may help to identify persons, systems, services, locations or events—nor do they include systems data, which are data that enable or facilitate the functioning of any system or service.

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Moved by

[Lord Keen of Elie]

220: After Clause 186, insert the following new Clause—
“Meaning of “protected data”
(1) In this Part, “protected data” means any data contained in a bulk personal dataset other than data which is one or more of the following—(a) systems data;(b) data which falls within subsection (2);(c) data which is not private information. (2) The data falling within this subsection is identifying data which—(a) is contained in the bulk personal dataset,(b) is capable of being logically separated from the bulk personal dataset, and(c) if it were so separated, would not reveal anything of what might reasonably be considered to be the meaning (if any) of any of the data which would remain in the bulk personal dataset or of the bulk personal dataset itself, disregarding any meaning arising from the existence of that data or (as the case may be) the existence of the bulk personal dataset or from any data relating to that fact.(3) For the meaning of “systems data” see section 239(4).(4) In this section, “private information” includes information relating to a person’s private or family life.”

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Moved by

[Lord Keen of Elie]

221: Clause 187, page 146, line 21, leave out from “service” to end of line 23 and insert “is seeking authorisation for the examination of bulk personal datasets of that class, the operational purposes which it is proposing should be specified in the warrant (see section 194)”

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Moved by

[Lord Keen of Elie]

222: Clause 188, page 147, line 13, leave out “wishes” and insert “is seeking authorisation”

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Moved by

[Lord Keen of Elie]

227: After Clause 189, insert the following new Clause—
“Protected data: power to impose conditions
Where the Secretary of State decides to issue a specific BPD warrant, the Secretary of State may impose conditions which must be satisfied before protected data retained in reliance on the warrant may be selected for examination on the basis of criteria which are referable to an individual known to be in the British Islands at the time of the selection.”

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Moved by

[Lord Keen of Elie]

243: Schedule 8, page 242, line 7, at end insert—
“( ) In sub-paragraph (1) “enactment” does not include any primary legislation passed or made after the end of the Session in which this Act is passed.”

[Lord Keen of Elie]

My Lords, I will now address government amendments relating to definitions and extent, and consequential provisions. They aim to ensure consistency within the Bill and with other statutes. Clause 246 contains the usual power to make amendments to other legislation consequential on the provisions of the Bill. Schedule 8 contains a similar power to make amendments consequential on the provisions in that schedule. As currently drafted, the powers would permit the amendment of legislation passed at any time in future.

The power to make consequential amendments to future enactments is necessary because other Bills before Parliament at the same time as this Bill touch upon the powers and public authorities covered by the Bill—such as, for example, the Policing and Crime Bill. Since it is impossible to predict how those Bills, or the Investigatory Powers Bill, may be amended during their parliamentary passage, and which Bill may achieve Royal Assent first, it is necessary to allow for the possibility of consequential amendment of future enactments.

In its recent report on the powers in the Bill, the Delegated Powers and Regulatory Reform Committee recommended that the powers should be restricted to the amending of future enactments passed or made during the current Session. The Government indicated in Committee in this House that they intended to accept this recommendation. Amendments 243 and 281 give effect to the committee’s recommendation, and I commend them to the House.

Amendments 260 and 271 are technical amendments that remove the definition of “person” from the Bill. The Bill’s definition of “person” in Clause 239 was carried over from the Regulation of Investigatory Powers Act 2000. It does not apply in relation to Parts 2 or 5 of the Bill, and we have concluded that it is not needed in respect of the other parts. The Interpretation Act definition will apply throughout the Bill. The definition of “person” in Clause 239 is therefore not required and Amendments 260 and 271 simply remove it.

Amendment 268 provides definitions of “journalistic material” and “confidential journalistic material”. It makes it clear where the additional protections provided for in Parts 2 and 5 of the Bill, which we debated here on the first day of Report, will apply. It is of course the case that the Government are seeking to protect legitimate journalism while ensuring that those who wish to do us harm cannot hide behind spurious claims of journalism. For this reason, Amendment 268 makes it clear that material acquired or created to further a criminal purpose is not considered journalistic material in the context of the Bill. This seeks to prevent persons such as those in the media wing of Daesh attracting a safeguard intended for legitimate journalists.

Amendments 280 and 286 clarify the drafting in relation to the definition of a postal operator, and to consequential amendments being made to RIPA. These drafting amendments make no changes to the effect of the provisions. Amendments 282, 283, 284 and 292 make minor amendments to the Security Service Act 1989, Intelligence Services Act 1994, Police Act 1997 and Anti-terrorism, Crime and Security Act 2001 in consequence of the updated targeted-interception provisions in Part 2 of this Bill.

Amendment 289 relates to the IPC’s duties to report to Scottish Ministers. Where the Police Act 1997 requires the IPC to report certain matters to Scottish Ministers, this amendment provides that the IPC can do so at any time, as opposed to only in its annual report. Amendment 285 is a minor and consequential amendment. As we have discussed previously, the Bill provides for an interception warrant to be obtained that has the main purpose of obtaining secondary data from communications, rather than intercepting communications content. This amendment simply amends RIPA to make it clear that a notice served under Part 3 of that Act can relate to an interception warrant that has the main purpose only of obtaining secondary data.

Amendment 287 ensures that the provisions of RIPA will make proper reference to powers provided for in this Bill, alongside existing legislative references. It will make two key changes to RIPA. First, it inserts a reference in Section 48 of RIPA to the equipment interference powers provided for in the Bill, which will sit alongside existing references to property interference powers contained in the Intelligence Services Act 1994 and the Police Act 1997. This amendment makes it clear that references to surveillance in Part 2 of RIPA do not include equipment interference activity which will be authorised under the Bill when it becomes the Investigatory Powers Act. This minor amendment will simply ensure consistency with the existing drafting of RIPA.

Secondly, and similarly, the amendment inserts a reference to equipment interference warrants into Schedule 2 to RIPA, which will sit alongside an existing reference to property interference authorisations under Part 3 of the Police Act 1997. Schedule 2 to RIPA relates to the issuing of a Section 49 notice under Part 3 of RIPA. A Section 49 notice allows relevant authorities to require a person to put protected electronic information into an “intelligible form”. In the future, acquisitions of these types of data will be done using equipment interference powers provided for in the Bill, so it is essential that law enforcement agencies continue to be able to use Section 49 notices with the new statutory framework. This amendment ensures that, in future, a law enforcement chief or an appropriate delegate will retain the same powers they currently hold in relation to protected electronic information obtained under existing legislation.

Amendment 288 is a minor, technical amendment that corrects a drafting error in Schedule 10. Paragraph 62 of Schedule 10 amends the Regulation of Investigatory Powers (Scotland) Act 2000 to ensure that Scottish Ministers can issue a code of practice in relation to equipment interference. This amendment clarifies that any such code of practice will be limited to targeted equipment interference so far as it relates to the police service or the Police Investigations and Review Commissioner, and will not relate to bulk equipment interference, a power which is not authorised by Scottish Ministers.

Finally, Amendments 296 to 300 are technical amendments which simply clarify the extent of the provisions of the Bill in relation to the Crown dependencies. They make two key changes. The first is being made following a request from the Isle of Man Government and will enable the extension of any of the provisions of the Bill, with or without modification, to the Isle of Man. This could assist the Isle of Man in ensuring that its legislative framework for law enforcement can be fully up to date and future-proof, enabling greater consistency with UK law.

The second of these changes will provide a more limited extension of provision for the Channel Islands, simply ensuring that any amendments made by the Bill to the provisions of another Act, such as the consequential amendments detailed at Schedule 10, may be extended to the Channel Islands by Order in Council, if that Act contains such a power. Any extension by Order in Council would of course only take place in consultation with the Governments of Jersey and Guernsey, and with their consent, and they would retain the option to make those amendments in domestic legislation instead. These technical amendments will help to clarify the extent of the provisions of the Bill. I beg to move.

[Lord Low of Dalston (CB)]

My Lords, I shall speak to Amendments 294 and 295, tabled by the noble Baronesses, Lady Hollins and Lady O’Neill, and the noble and learned Lords, Lord Falconer and Lord Wallace. The noble Baronesses very much regret that they cannot be present in the House today, and they have asked me to speak to their amendments. I will be brief, as I understand that, without prejudice to the Government’s ultimate position, the Minister is not seeking to divide the House, and we are all most grateful to him for that.

The amendments would have no impact on the security measures in the Bill, nor would they affect the other measures in the Bill in any way. Their sole purpose is to bring into force automatically after Royal Assent Clause 8 and the new clause that was added to the Bill by this House last week by a large majority.

The amendments would deliver cost protections in hacking cases, which Section 40 of the Crime and Courts Act 2013 was enacted to provide for all publication torts. Section 40 is a key part of the Leveson recommendations that the Government promised to implement but has not been commenced. Non-commencement frustrates the will of Parliament and is a breach of the 2013 cross-party agreement. The commencement of these clauses automatically after Royal Assent is necessary to ensure that the device of non-commencement is not employed again on the amendments that the House passed last week. For these reasons, I commend Amendments 294 and 295 to the House.

[Lord Keen of Elie]

My Lords, we discussed the substantive points on this issue on day one of Report. We consider these amendments consequential to the ones we discussed then. Although the Government’s position on the substantive issue remains as we set out last week, we are not opposing these amendments.

Amendment 243 agreed.

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[Lord Murphy of Torfaen (Lab)]

My Lords, I shall add some points to what my noble friend has just said. During our rather long deliberations this evening and afternoon, I went to the Library to look up the definition of “draconian”. It seems to me to be very harsh, very severe. Apparently, it goes back to ancient Greece, where Draco was the statesman who decided that every single crime would be dealt with by a death sentence. It is not a good description of the Bill and the shadow Home Secretary is unfair and, I think, mischievous in what she said, because the Bill is significant, extremely serious and very difficult. It tries to balance the importance of security in our country, which was discussed at some length today, and our liberties.

I have to say that in 30 years in Parliament I do not think I have seen a Bill which has been scrutinised quite as well as this—not just by the Joint Committee that we were on in November and December but by other committees as well and, indeed, what we have seen in this House and the House of Commons. Nevertheless, the Joint Committee, at the very end of its deliberations, knowing full well that there would be an enormous amount of scrutiny, looked at what could happen in terms of review of the Bill. The Information Commissioner, indeed, gave evidence to the Joint Committee indicating that he thought there should be a sunset clause. The then Home Secretary, who has gone on to greater things, indicated that this was not appropriate, but the committee believed that parliamentary review of the operation of what will then be an Act should take place within six months after five years. That has been incorporated into the Bill and it is the most important type of scrutiny that could happen, because that would be a Joint Committee of both Houses of Parliament, one hopes, which could look at how the Bill has operated. The reason the Joint Committee said that was because of the hugely grave and serious nature of the Bill—not just because of the way it touches on the liberties of the subject, but protecting the subject as well.

[Lord Keen of Elie]

My Lords, we remain sympathetic to the desire for ongoing scrutiny of the Bill, and this is already provided for. In these circumstances we suggest that these amendments are not necessary. The Bill requires that the operation of the Act will be reviewed after five years, which is an entirely appropriate period. It is also consistent with the recommendation, as indicated, of the Joint Committee that scrutinised the draft Bill. We must ensure that, before a review takes place, all the Bill’s provisions have been in effect for a sufficient period that a review is justified and can be meaningful. A review after three years, as provided for by Amendments 258A and 258B, runs the risk that this would not be the case.

We also fully expect the review after five years to be informed by a report of a Joint Committee of Parliament, in line with the recommendation made by the Joint Committee. In addition, concurrent with such a review the Intelligence and Security Committee of Parliament would have the opportunity to assess the more sensitive aspects of the operation of the Act. Let us remember that, in addition, the exercise of the powers provided for under the Bill will of course be subject to the ongoing oversight of the Investigatory Powers Commissioner, who will be obliged to make an annual report to the Prime Minister.

The Government have listened to the previous debates in Parliament and amended the Bill to ensure that the Investigatory Powers Commissioner must, in particular, keep under review and report on the operation of safeguards to protect privacy. Furthermore, the Investigatory Powers Commissioner’s reports must be published and laid before Parliament, providing Parliament with ongoing scrutiny of the operation of the Act. Accordingly, I invite the noble Lord to withdraw the amendment.

[Lord Paddick]

My Lords, I am grateful to the noble and learned Lord for his explanation. We are still of the view that at least once every Parliament, before a general election is called, a Joint Committee of both Houses of Parliament, as suggested by the noble Lord, Lord Murphy, should look at what the Government have been up to during their time in office so that the electorate are fully aware of how the Government have used the Bill. However, at this stage I beg leave to withdraw the amendment.

--- Later in debate ---

The purpose of this amendment is to inquire on what basis that oversight is to be achieved. I beg to move.

[Lord Keen of Elie]

My Lords, this amendment is unnecessary. The Government have already made it clear that the new Investigatory Powers Commissioner will bring together the existing responsibilities of the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner. That includes oversight of the consolidated guidance on the detention and interviewing of detainees. In addition, the Investigatory Powers Commissioner will have a bigger budget and a dedicated staff of commissioners and inspectors, as well as independent legal advisers, to ensure that the highest levels of independent scrutiny are maintained. In these circumstances, I invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, I chose the last words of my remarks quite carefully because it is the statutory basis of the current arrangements that is so important, which is why we raised it at this—I acknowledge—late stage. Obviously, I am glad to have these assurances. They do not answer my question but that position is now on the record. I beg leave to withdraw the amendment.

Investigatory Powers Bill

Lord Keen of Elie Excerpts

3rd reading (Hansard): House of Lords
Monday 31st October 2016 Lords Chamber

[Lord Rosser (Lab)]

My Lords, when the amendments moved on Report by the noble Baroness, Lady Hollins, were discussed, the Government said that they did not believe that they would achieve the outcome she was seeking since the relevant clause dealt with the interception of private telecommunications systems, such as a company’s internal email or telephone system. The fact that the noble Baroness has been permitted the amendment before us at Third Reading suggests that it is accepted that it seeks to address the point made by the Government on Report; namely, that the amendments that were carried on Report do not achieve the outcome the noble Baroness is seeking.

I understand the Government oppose this amendment. Perhaps they will argue that this amendment also does not achieve the objective the noble Baroness is seeking. As the noble Lord, Lord Low of Dalston, reminded us, on Report the Government said that they fully understand that many noble Lords, particularly those who have been victims of press abuse, are frustrated about what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report, albeit that the Government went on to say that they did not accept that that frustration was justified.

I am not able to comment personally on whether this latest amendment, which was tabled at a very late stage, achieves its purpose or not. But I do know that the Government do not seem to have been particularly helpful so far in seeking to assist with what wording would achieve the purpose sought by the noble Baroness, Lady Hollins, and the other noble Lords who are signatories to the amendment concerned, bearing in mind these were amendments which, on Report, had the support of the House.

On Report, the Government accepted the commencement provision amendments, while making it clear that that did not mean that they had accepted, or would be accepting, the earlier amendment related to Leveson which had been passed by the House. Despite that earlier stance, the Government do not appear to have been willing to adopt the same approach to getting the wording right, in their view, for the amendment carried in this House on Report.

We will support this amendment if it is put to a vote. Therefore, if it is carried, the Government will have another opportunity, albeit in the Commons, to put forward wording which achieves the objective sought by the noble Baroness, Lady Hollins, and indeed up to now by this House in relation to this amendment and amendments already carried on Leveson-related issues, before the Commons makes a decision on whether to accept or reject the amendments passed by this House or to put forward an alternative amendment of its own.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we discussed this issue in some detail on Report. As we previously made clear, the cause of action, or tort, provided for in Clause 8 is intended to replicate the safeguard in the Regulation of Investigatory Powers Act 2000. This focuses on circumstances where an individual’s communications are intercepted on a private telecommunications system by a person who has the right to control the operation or use of that system. This was a necessary safeguard to protect individuals, in very limited circumstances, where their employer may unfairly be intercepting communications on a company’s internal computer system, which is not within the scope of the offence of unlawful interception.

A number of noble Lords have spoken about the objective of the amendment. With great respect, the fundamental difficulty is that it really has nothing to do with the purpose or purposes of Clause 8. It is not, as the noble Lord, Lord Paddick, suggested, simply a case of deleting “private” and substituting “public” , or of seeking to amend the proposed amendment at this stage or to improve it—it simply has no place in the clause. Clause 8 was not intended to regulate the press or to deal with awarding costs in circumstances where such a case is brought against a publisher. It simply has no application in this context. I quite understand the concerns about Section 40 that have been expressed, and the question of commencements is understood and is under consideration. But to amend Clause 8 in this way is to ignore the very purpose of this part of the Bill.

The Bill already provides for a criminal offence where an individual has unlawfully intercepted communications. An individual convicted of such a crime is liable, on conviction on indictment, to imprisonment for a term of up to two years, a fine or indeed both. So anyone carrying out phone hacking would face, under this Bill, a criminal conviction. That is a significant penalty and, in our view, the appropriate penalty for such an offence.

As we made clear in the previous debate, there are already avenues for individuals to pursue civil claims against those who carry out unlawful interception such as phone hacking. For example, cases have been brought on the grounds of misuse of private information. Although I agree with the noble Baroness that the outcome of Leveson and press regulation are very important issues, I maintain that this Bill, and in particular Clause 8, is not the appropriate place to deal with them. I therefore invite the noble Baroness to withdraw her amendment.

[Baroness Hollins]

My Lords, thank you for contributing to our understanding of this problem a little further. At no point has the House been told that the amendments are not in scope. In fact, it was suggested to me over the weekend by members of Her Majesty’s Government that I should seek instead to place such amendments within another Bill, such as the Digital Economy Bill. I sought advice from the Public Bill Office but, after considering the matter at length, it advised me that that was not possible and they would not be within the scope of the Digital Economy Bill.

If the House supports the amendment today, as I hope it will, I will be more than happy to work with the Government to find a wording which does no more than provide for as much of the Section 40 costs incentives as could be provided in the scope of the Bill without going any further. I would not be asking the House, in ping-pong, to do anything that destabilises anything else in the Bill. The best solution, of course, would be for the Government to commence Section 40, as they promised and as they should. Then, we could drop all the amendments. It is the Government’s choice and always has been.

On previous occasions when I have had drafting difficulties—and this is a complicated Bill—Ministers have been most helpful in achieving the intentions of your Lordships’ House. I wrote to the noble Earl, Lord Howe, asking whether there were any technical difficulties with the amendment, and the answer was no.

I am not content with the answer given by the noble and learned Lord, and I wish to seek the opinion of the House.

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Moved by

[Lord Keen of Elie]

2: Clause 41, page 34, line 28, leave out “to which the warrant relates” and insert “authorised or required by the warrant”

[Lord Keen of Elie]

My Lords, I will now address a series of government amendments which are minor and technical in nature. They aim to correct minor drafting oversights and inconsistencies within the Bill, as well as to clarify provisions and make minor consequential changes. Clause 41 contains special rules that apply for certain mutual assistance warrants, and Amendments 2, 3 and 4 correct inconsistencies in language in this clause. Amendment 5 is consequential on amendments made on Report in this House, which clarified that a communication can be between machines as well as people. Amendment 10 corrects an inconsistency in language with regard to the renewal of equipment interference warrants. Amendments 21, 22 and 23 are all minor amendments to those clauses of the Bill that relate to bulk acquisition warrants. Amendment 33 is another technical amendment, which provides that Clause 272(4) comes into force on the day on which the Bill is passed. Finally, Amendments 34, 35 and 36 are all minor and technical amendments that are designed to improve and clarify the written language of the Bill. These minor and technical amendments will help to clarify the extent of the provisions of the Bill. I beg to move.

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[Lord Murphy of Torfaen (Lab)]

My Lords, I disagree with the noble Baroness, Lady Jones. She played an important role in the course of this Bill in reminding your Lordships of the need to deal with the liberty of the citizen. But the greatest threat to the liberty of the citizen is the threat to life. This Bill, which is now in its final stage, is extremely important in ensuring that in future our citizens are protected against terrorism and the threats that face this country and beyond.

Of course, there were and are still issues that need to be taken very seriously with regard to the liberty of the subject. But in all the years that I have been in Parliament, I have not seen as much scrutiny of a Bill as this one. Not only did the Joint Committee, which I had the honour to chair, go through all the details of the Bill over a number of months, the other committees in Parliament also dealt with it, not least the Intelligence and Security Committee.

I commend the Government—not something that I usually do, but I will on this occasion—on accepting a great number of amendments to the Bill, which have improved it in the sense of ensuring that our liberties are safeguarded but that the basic thrust of the Bill remains the same. This has been a tremendous exercise in parliamentary scrutiny. As my noble friend Lord Rooker said, it is Parliament’s Bill as much as it is the Government’s.

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Rooker, for making his point at this stage. This is an important Bill. It will update the framework for the use of investigatory powers to obtain communications for the foreseeable future. But it not only provides powers, it provides safeguards that are clear and understandable: the double lock for the most intrusive powers; the creation of a new Investigatory Powers Commissioner; important safeguards on oversight in respect of legal professional privilege and in respect of journalistic material; a government response to David Anderson’s review in respect of bulk materials; and extensive consultation with the bodies affected by investigatory powers.

What we have today is the product in this House of cross-party collaboration. The parties opposite have taken an incredibly constructive and reasonable approach during the Bill’s passage and we are sending a significant number of changes back to the House of Commons. But those changes are evidence of the constructive engagement from all sides in this House. I particularly note the contributions of the noble Lords, Lord Rosser, Lord Rooker and Lord West, the noble Baroness, Lady Hayter, and from the Liberal Democrat Benches the noble Lords, Lord Paddick, Lord Carlile and Lord Lester, and the noble Baroness, Lady Hamwee. Indeed, the noble Lord, Lord Strasburger, also contributed to our debates on this matter. Of course, members of the ISC and Members on the Cross Benches have taken a great interest in the passage of this Bill. I cite the noble Lords, Lord Butler and Lord Pannick, and the noble and learned Lords, Lord Judge and Lord Brown of Eaton-under-Heywood, and I am sure that I have missed many others. But this expression is intended for all Members of the House who have taken this matter forward and produced a Bill that we can send back to the other place with confidence, subject possibly to one amendment.

Amendment 2 agreed.

Moved by

[Lord Keen of Elie]

3: Clause 41, page 34, line 41, leave out “to which the warrant relates” and insert “authorised or required by the warrant”

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Moved by

[Lord Keen of Elie]

6: Clause 56, page 45, line 20, leave out “The Investigatory Powers Commissioner may” and insert “Unless the Investigatory Powers Commissioner considers that subsection (3B) applies to the item, the Commissioner must”

[Lord Keen of Elie]

My Lords, in moving this amendment I shall speak also to the other amendments in the group. This House has already discussed the important issue of legal privilege and whether the protections in the Bill for material that attracts privilege are adequate. At Report stage, the Government made a number of amendments significantly increasing the protections afforded to such material which were welcomed by this House.

In response to an amendment proposed by the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Hamwee, we also committed to consider whether there was more we could provide in the Bill to set out what the Investigatory Powers Commissioner must do when privileged material has been obtained and an agency wishes to retain it, and the considerations that he or she has to take into account when deciding whether material can be retained. The amendments tabled today speak to that issue, and in broad terms they do two things.

First, they provide that the Investigatory Powers Commissioner must order the destruction of privileged material or impose conditions on its use or retention unless the public interest in retaining the item outweighs the public interest in the confidentiality of items that are privileged, and retaining the item is necessary in the interests of national security or to prevent death or significant injury. Secondly, they provide for the commissioner to be able to impose conditions as to the “use or retention” of privileged items rather than its “disclosure”, as was previously the case. This makes it abundantly clear that decisions about what can be done with privileged material—whether it can be retained and who can be told about it—rest entirely with the commissioner, a serving or a former High Court judge who is, of course, well placed to make decisions which have at their heart public interest in the confidentiality of items subject to legal privilege.

The amendments relate to the interception provisions, both targeted and bulk, to the equipment interference provisions, both targeted and bulk, and to the provisions that relate to bulk personal datasets. The Bill therefore makes it clear that in every circumstance where legally privileged material is obtained and an agency wishes to retain it, whether the material is obtained intentionally or inadvertently, the commissioner must order its destruction or impose conditions on its use and retention unless its retention is necessary in the interests of national security or to prevent death or significant injury, and the public interest in retaining the item outweighs the public interest in the confidentiality of items subject to privilege.

Amendments 11 and 24 are more minor and technical in nature. They ensure that Clauses 132 and 195, which relate to the retention of items obtained by targeted and bulk equipment interference, are consistent with the equivalent provisions in those parts of the Bill that deal with interception. I trust that noble Lords will agree that the Government have listened at every stage to the concerns of this House about the vitally important protections that must apply to material which attracts legal privilege, and I hope that they will further agree that the revised protections in the Bill reflect the sensitivity of legally privileged material while ensuring that sensitive but potentially vital intelligence remains available to the agencies in very limited circumstances. These final additions to the Bill make it clear that the criteria which apply to a warrant that authorises access to legally privileged material similarly apply to its retention.

I am obliged not only to the noble Lords, Lord Lester and Lord Pannick, and the noble Baroness, Lady Hamwee, in respect of these amendments, but also to my noble and learned friend Lord Mackay of Clashfern, who is not in his place today but who has contributed much to the discussions regarding these provisions. I beg to move.

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Moved by

[Lord Keen of Elie]

7: Clause 56, page 45, line 22, after “impose” insert “one or more”

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Moved by

[Lord Keen of Elie]

10: Clause 118, page 96, line 13, after “the” insert “renewed”

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Moved by

[Lord Keen of Elie]

11: Clause 132, page 109, line 19, leave out from “privilege” to end of line 21 and insert “which has been obtained under a targeted equipment interference warrant is retained, following its examination, for purposes other than the destruction of the item.”

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Moved by

[Lord Keen of Elie]

16: Clause 154, page 127, line 11, after “privilege” insert “which has been”

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Moved by

[Lord Keen of Elie]

21: Clause 159, page 130, line 27, leave out “such data” and insert “communications data obtained under the warrant”

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Moved by

[Lord Keen of Elie]

22: Clause 169, page 136, line 39, leave out “obtained” and insert “as authorised or required”

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Moved by

[Lord Keen of Elie]

23: Clause 170, page 137, line 3, leave out “169(3)” and insert “169(2)”

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Moved by

[Lord Keen of Elie]

24: Clause 195, page 157, line 42, leave out from “privilege” to first “the” in line 44 and insert “which has been obtained under a bulk equipment interference warrant is retained following its examination, for purposes other than the destruction of the item,”

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Moved by

[Lord Keen of Elie]

29: Clause 224, page 177, line 41, leave out “The Investigatory Powers Commissioner may” and insert “Unless the Investigatory Powers Commissioner considers that subsection (2B) applies to the item, the Commissioner must”

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Moved by

[Lord Keen of Elie]

33: Clause 273, page 226, line 1, leave out “and (3)” and insert “to (4)”

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Moved by

[Lord Keen of Elie]

34: Schedule 3, page 246, line 33, at end insert—
“( ) In sub-paragraph (3) “intercepted material” means—(a) any content of an intercepted communication (within the meaning of section 57), or(b) any secondary data obtained from a communication.”

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Moved by

[Lord Keen of Elie]

35: Schedule 10, page 273, line 28, leave out sub-paragraph (3) and insert—
“(3) In paragraph (a) of the definition of “communication” omit “(except in the definition of “postal service” in section 2(1))”.”

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Moved by

[Lord Keen of Elie]

That the Bill do now pass.

[Lord Keen of Elie]

My Lords, I beg to move.

[Lord Rosser]

Let me take this opportunity to say that, while very differing views have been expressed in this House about the Bill, I believe it is accepted that it has benefited significantly from the attention it has been given through pre-legislative scrutiny and investigation, including by a Joint Committee, and during its passage through both Houses. We have now concluded our consideration of the Bill, and I want to take this opportunity to thank Ministers and the Bill team for the thought they have given to the issues that have been raised, including those left outstanding following the Bill’s passage through the Commons. Finally, I want to thank our own team, particularly Nicola Jayawickreme, for all the help and support they have given me and my noble friend Lady Hayter of Kentish Town.