Investigatory Powers Bill

Lord Keen of Elie Excerpts

Monday 27th June 2016 Lords Chamber

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

My Lords, this has been an interesting and thought-provoking debate, which has benefited from the considerable expertise on all sides of this House. I am grateful to all those who have contributed. In particular, I welcome the contributions from those opposite. This reflects the constructive approach that has been taken to the Bill right across Parliament.

Indeed, I recognise the consensus on all sides of this House that new legislation is needed to make the use of these powers clearer and more transparent. We have an opportunity now to ensure that the security and intelligence agencies and law enforcement have the powers they need, and to strengthen the safeguards and oversight that govern their use. The list of speakers this evening is testament to the importance of this issue.

Mention has repeatedly been made of the need to balance privacy and security. There have been references to the privacy of the innocents, but one must also take account of the protection of the innocents. As the noble Baroness, Lady Liddell, observed, one of the primary human rights is the right to life, and without that the others fade into insignificance.

A number of issues have been raised in the course of this fairly lengthy debate. If I am short in responding to them at this stage, it is not because I consider those contributions slight but because I am constrained by time.

The noble Lord, Lord Rosser, raised the question of EU co-operation, which has just been revisited by the noble Baroness, and whether that would impact the present Bill. There is, of course, no immediate change to our relationship with the EU and it is not considered that any changes are or will be required to the Bill by virtue of recent developments. Of course, negotiations will take place over the coming weeks and months with regard to our situation and the EU, and these will clearly need to take account of our security and the need for cross-border co-operation in the area of security and the need for further co-operation beyond that. But let us remember that we already co-operate with many countries beyond the European Union in matters of security. Noble Lords will be familiar with the “Five Eyes”, which includes the United States, Canada, Australia and New Zealand—none of them connected with the European Union. So it is not considered that that will be an issue for the Bill as it proceeds.

The noble Lord, Lord Rosser, also referred to the undertakings and commitments that have been given in the Commons with regard to the Bill. Of course, we will meet those commitments and undertakings. We fully intend to bring forward a number of amendments. We intend to have those amendments available by 4 July.

There are remaining issues, of course, that will be the subject of further debate. The noble Lord, Lord Rosser, made reference to such issues as the privacy clause, which is now expressed in the Bill and the Bill is improved because of that; the express provision on trade unions—again, the Bill is improved because of that; and the question of dealing with whistleblowers’ protection, which the Solicitor-General alluded to in the other place. Again, we will meet our commitments with regard to these matters.

I turn to some of the observations of the noble Lord, Lord Paddick, which were supported to some extent by the noble Lord, Lord Oates. He concentrated in particular on internet connection records and something that he referred to as a draconian power. I noticed that the noble Lord, Lord Condon, alluded to these powers and was at pains to point out that they were not extending any boundaries but maintaining them. I would go further: these powers are actually restoring a boundary that had been lost as people moved away from conventional telecommunications. There was a time when police powers in regard to conventional telecommunications would provide them with the datasets they required, particularly in the context of evidence gathering and prosecution.

I pause on that note. The noble Lord, Lord Paddick, suggested that recourse could be had to the powers of the security services rather than in gathering ICRs. But of course that is neither practical nor effective because many of the powers of the security services produce investigative material that is not admissible as evidence in a court of law. Therefore, one has to be careful about how one confuses the powers of the security services to gather and investigate and the powers that are conferred upon the police in the context of internet connection records.

With regard to the security of that material, the noble Lord, Lord Oates, raised a number of questions, some of which puzzled me a little. What I will say is this: clearly, the data are retained by the service provider and those service providers are bound by various data protection obligations with regard to the security of those data, and that will continue to be the case. As regards the period of retention—12 months—that reflects the requirements of the police in the context of the sorts of investigations that are carried out by reference to these kinds of data; that is, telephonic communications data and the like.

So far as cost is concerned, the noble Lord, Lord Paddick, cited a figure of £1 billion. I know not where that figure came from, but the considered opinion of the Government is that the cost will be in the region of £174 million over 10 years. Of course, that cost is not to the service providers but will be met by the Government where it is reasonably incurred by the service providers when and if they are required to retain the relevant data.

The noble Lord, Lord Paddick, also referred to the request filter as a database and said that it was therefore vulnerable. The request filter is not a database; it is simply a filter. It is a further safeguard because it will operate in such a way that where a mass of data are returned by a service provider they will go through the request filter, and the relevant authority will receive only the data it requested and no additional data, notwithstanding what the service provider may have made available. I hope that answers the points raised by the noble Lord, Lord Paddick.

I will not be able to answer every query that has been raised today. If at the end of this evening there are any points that noble Lords feel I have not responded to and wish me to do so before Committee, they should allow my office to be aware of that and I shall arrange to write to them on the particular topic. I say “my office” in response to an observation from one of my noble friends who said that there was no Home Office Minister here. I had understood that I was here in the capacity of a Home Office spokesperson. If I am not, I want to know why I have been answering all these questions for the past four weeks.

The noble Lord, Lord Paddick, also referred to the RUSI 10 tests, which were alluded to by the noble Lords, Lord Hennessy and Lord Rooker. Professor Michael Clarke, the then director-general of RUSI, gave evidence to the Joint Committee that scrutinised the draft Bill. He said:

“As Chair of the RUSI panel, I can say that the Bill met most of our expectations in terms of the recommendations that we made”.

The noble Lord, Lord Rooker, made the sensible suggestion that we should consider producing a paper in which we set out the Government’s response to each of those 10 points. I hope he will understand what I mean when I say that we will take that and give it due consideration.

The noble Lord, Lord Pannick, raised the question of legal professional privilege. He was joined in these observations by the noble Lords, Lord Lester, Lord Beecham and Lord Thomas. I notice that, in his account of his experiences, the noble Lord, Lord Thomas, did not say what happened to the bag of money but surely we can infer that it remained where it was. I fully accept the analysis of legal professional privilege that has been advanced by each of the noble Lords. The present position is this: I am due to meet representatives of the Bar Councils and the Law Societies this coming week to discuss the scope of the provisions within the Bill with regard to legal professional privilege.

The noble Lord, Lord Pannick, was right to observe that there is one problematic area—the question of when and to what extent there should be access to LPP material in circumstances where there is no iniquity. There may be very exceptional circumstances in which it is critical in the context of an immediate investigation that some data should be recovered. That will be addressed and we will bring forward our finalised position in due course.

There was also the question of journalistic privilege. This has been clouded by a misunderstanding on the part of many journalists as to what, if any, privilege they actually enjoy, in particular the belief that whenever security services sought information from a service provider they would be given notice of that. That is not the case. It is not the present law and it is not realistic that that can be law. However, again, this will be addressed going forward.

In addition, of course, we have to address the question of what is a journalist. I believe one noble Lord on the opposition Benches said that could be defined normally by waving an NUJ ticket. That is no longer the case and virtually every blogger on the planet would claim to be a journalist of one kind or another. It is a very serious issue and we will seek to address it.

The noble Lord, Lord Blunkett, mentioned the necessary balance between liberty and privacy and again underlined the need to balance the privacy of the innocent with their protection.

The noble Lord, Lord Strasburger, raised a number of issues. I shall not repeat what I have already said about internet connection records or the request filter. He also questioned whether the provisions of the Bill would somehow threaten, as he put it, encryption. There is no question of that. The provisions of the Bill do not weaken encryption or threaten it. We do not seek what have sometimes been erroneously termed “back doors” into encrypted material. I would seek to dispel any such suggestion.

The noble Baroness, Lady Neville-Jones, raised questions about extraterritorial jurisdiction, as did the noble Baroness, Lady Liddell, and the noble Lords, Lord West and Lord Janvrin. The US Attorney-General recently indicated that discussions are ongoing to address conflicting legal obligations in circumstances where we seek the release by American companies of material. United Kingdom law is perfectly clear that companies providing communication services to users in the United Kingdom, irrespective of where they are based in the world, must comply with lawful requests and warrants from UK authorities. The ultimate power to deal with that would of course be contempt of court proceedings. We maintain that right to extraterritoriality. In response to a further point made by the noble Baroness, Lady Liddell, I should add that we are satisfied that the provisions of the Bill comply with and meet our international legal obligations. Whether it sets a template for others is a different matter, but we are satisfied in that regard.

The noble Lord, Lord Lester, raised the question of legal professional privilege. He also referred to the position of the IPC and to the “commission”. I should be clear that in terms of the Bill there is no commission; there is a commissioner. However, the commissioner has the express power to seek independent legal advice as and when required. I believe that another of your Lordships referred to the commission. It is not a commission; it is the commissioner.

[Lord Lester of Herne Hill]

I am grateful for what the Minister has just said, but will the Government consider, as David Anderson has suggested, that there should be a commission endowed with the kind of powers that he has recommended?

[Lord Keen of Elie]

I note the observation. The position of the Government is that it is appropriate that there should be a commissioner and that it is not necessary that there should be a commission. Clearly, this matter can be revisited in Committee.

Thematic warrants were mentioned by the noble Lord, Lord Lester, and my noble friend Lord Lothian. Thematic warrants are considered vital to investigate complex and fast-moving threats, and they are currently provided for under RIPA. The Bill simply clarifies and strengthens the safeguards around the operation of thematic warrants but, again, if there are issues as to their scope, they can be revisited in Committee.

My noble friend Lord Lothian and the noble Lord, Lord Janvrin, raised the question of bulk personal data. The Government accepted in principle the argument that we should provide further restrictions on the use of class BPD warrants and should take into consideration some of the detail contained in the ISC’s draft clause. The Government intend to bring forward some amendment on this—again, I indicate that it should be available by 4 July.

My noble friend Lord Lothian also mentioned additional offences being incorporated into the Bill. It is considered that the changes made to Part 1 make clear the criminal offences that apply. The Bill also creates a new offence for the acquisition of communications data without lawful authorisation. Beyond that, it is not considered appropriate to introduce further criminal offences into the Bill at this stage.

Questions were raised about the double lock, of course. The position of the Government, and I believe that of the Opposition, is that we have now arrived at a suitable position in this respect, but it is important that the judicial point here should be subject to a test of judicial review. It would not be appropriate for a judge in these circumstances to revisit the merits of a decision, and I hope that that will find wider support in the House in due course. In the end the Secretary of State must be answerable to Parliament for the warrants for these intrusive powers, and that is allowed for.

In the context of warrants, the noble Lord, Lord Evans of Weardale, raised the question of speed of operation. There is provision within the Bill for an emergency warrant to be issued by the Secretary of State and then be the subject of review by the judicial commissioner. It is hoped that speed of operation will not be challenged by the terms of the Bill going forward. The noble Viscount, Lord Colville of Culross, mentioned in the context of journalists the matter of notification of warrants. As I indicated, that is not the present law and it is not considered a realistic way forward, but again I anticipate that that may be considered in Committee.

Modern legislation that consolidates and clarifies the powers available to the state to obtain communications and related information is, I believe it is generally acknowledged, badly needed now. That was the conclusion of three independent reviews and three committees of Parliament. The Bill achieves that aim. The threats we face are evolving and the ways in which we communicate are changing rapidly. The capabilities of law enforcement and the security and intelligence agencies must evolve and change too. It is Parliament’s responsibility to ensure that those charged with keeping us safe have the powers they need, governed by strong safeguards, strict protections and robust oversight. That is what the Bill provides.

The Government are clear that the Bill must command the support of Parliament and the public. It arrives in this House having been subject to extensive debate and examination in the other place and having received cross-party support and a resounding majority there. As we have done to date, we will continue to listen, to engage and to make changes that improve the Bill or strengthen its safeguards. We have the opportunity here to deliver world-leading legislation that provides robust oversight and powerful privacy protections. It is legislation that is clear, comprehensible and legally sound. It will provide the men and women of our law enforcement and security and intelligence agencies with the powers they need to keep us safe. I commend the Bill to the House.

Bill read a second time and committed to a Committee of the Whole House.