Lord Keen of Elie
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Investigatory Powers Bill
Lord Keen of Elie Excerpts(8 years, 3 months ago)
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Baroness Hamwee (LD)
My Lords, I will speak also to Amendments 191B, 191BA, 191C, 191D, 191E, 191F, 191FA, 191G, 191GA, 191GB, 191H and 191J—on this occasion, I do not think that the importance is in inverse proportion to the number of amendments, as one often finds.
Taken together, these amendments would give the Investigatory Powers Commissioner greater scope to report errors—this is not unrelated to the previous amendment—and create a more level approach by removing many of the strict limitations which would prevent many errors being reported. The objective is to ensure that the protections in place for the agencies do not restrict those for the general public in learning whether an error involving them has been made. I must thank the organisation Big Brother Watch for drawing several points to our attention.
The first two amendments simply seek to bring more objectivity to the exercise.
Amendments 191C and 191D deal with when an error should be reported. According to the Bill, that should happen when it is “a serious error” and,
“it is in the public interest for the person to be informed”.
I suggest that the default should be that a person who has been the subject of an error should be informed unless there is a good reason for him not to be. The clause does not say that the person should be informed unless it is in the public interest for the person not to be informed. In the debate on the previous amendment, the Minister talked about prejudicing an ongoing investigation. Without consulting my noble friend Lord Paddick, I would regard that as being something that would be in the public interest to create a block on information. We have the phrase “serious error”. To me, “serious” risks an ever-higher threshold being set on reporting an error. One of my amendments suggests the term “not trivial” as an alternative that would provide a proportionate response to the issue.
Amendment 191E would delete Clause 207(3). Subsection (3) provides that,
“the fact that there has been a breach of a person’s Convention rights (within the meaning of the Human Rights Act 1998) is not by itself sufficient for an error to be a serious error”.
The requirements of the Human Rights Act are a particular consideration under Clause 2, which is the privacy clause. I would regard any breach of the convention rights as something about which to be very careful. Article 8, the right to private and family life, is not absolute; there may be interference with it in accordance with the law where it is necessary in a democratic society, in the interests of national security and given other matters set out in the article. I have two questions, and it looks from the way he is writing notes as though they should be addressed to the noble and learned Lord, Lord Keen. First, how does subsection (3) affect Clause 2, the privacy clause? Can the Committee be assured that that clause is in no way weakened by Clause 207(3)? Secondly, is Clause 207(3) included in order to meet the wording of Article 8, which is that it does not apply if the breach is “in accordance with law”? Is this clause bringing that situation within the scope of being in accordance with law?
Amendment 191F requires the Investigatory Powers Commissioner to consider matters which are the subject of Clause 2, the privacy clause. This part of the Bill is not referred to in Clause 2. The safeguards to protect privacy are referred to in Clause 205(5) but that is in connection with a review under Clause 205. How does the privacy safeguard apply to this clause?
Amendments 191G and 191GA—probably best read the other way round by noble Lords who are managing to follow this, which is not a stream of consciousness but a stream of amendments—would provide that the details which the commissioner considers necessary for the exercise of the right to apply to the tribunal and “other details” should be made public and be proportionate. If an error is made, why should information about it be limited to details necessary for an application to the Investigatory Powers Tribunal? There may be other rights in play, and should the person not be informed? People do not always want to exercise a right, but nevertheless if an error has been made they should have the information about it. The second of this pair of amendments, which refers to proportionality, may not be quite right in its drafting, but I am sure that the noble and learned Lord will understand that I am seeking to find the balance between individual rights and national security and so on.
I turn to Amendment 191GB. Clause 207(9) provides that an error which prompts action under the clause is an error by a “public authority”. For this purpose, do public authorities include telecommunications officers? They should do, which is why the amendment adds them if they are not already there, because those operators carry out a very significant amount of surveillance work on behalf of public authorities.
On Amendment 191H, we are told that errors must be of a description identified in a code of practice. The important term here is “code”. The codes of practice are variable: they are not part of the primary legislation. I know I am going to be told about scrutiny of them, but they limit what will be a relevant error and I am a bit doubtful about the sort of scrutiny one is able to give to this type of instrument or document. You would have to be very diligent and on the ball to pick up the connection with this clause.
Finally, Amendment 191J suggests that the Investigatory Powers Commissioner should include these matters in a report—Clause 210, which we are coming to, provides for periodic reports—and make recommendations. I dare say I might be told that he could, of course, make recommendations arising from his reviews of relevant errors and of the definition of a relevant error, but it would be appropriate to link the reviews to the statutory report. I beg to move.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, Clause 207 is clearly 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 them of the error and of their right to apply to the Investigatory Powers Tribunal. The judicial commissioner must provide such details as the commissioner considers necessary for the person to bring a claim. I understand the intention behind the amendments to this clause and, of course, support the principle that individuals should have the right to seek appropriate redress if they have suffered serious harm or prejudice as a result of use of the powers under the Bill. However, I do not consider that it would be appropriate for an individual to be notified if that went against the wider public interest.
The threshold that has to be reached before an individual should be notified has been considered very carefully. It has been set to ensure that the rights of the individual who may have suffered as a result of a serious error are balanced against the wider national interest of preserving the operational capabilities of the security and intelligence agencies and those of law enforcement. That is a delicate balance and it is right that the commissioner, with his independence and expertise and with all the facts in front of him—or, indeed, her—is best placed to take that decision on a case-by-case basis.
Amendment 191GB seeks to expand the definition of “relevant error” to include errors by telecommunications operators, who are not, in response to the question posed by the noble Baroness, Lady Hamwee, public authorities. The definition of what constitutes a relevant error is important for the reporting duties placed on public authorities and telecommunications operators and it is right that those persons should be under a duty to report any relevant errors to the Investigatory Powers Commissioner. The amendment is also unnecessary. Telecommunications operators already report their errors to the Interception of Communications Commissioner’s Office. The IPC can comment on any CSP errors in its annual report and can disclose information via Clause 211(2), and the Investigatory Powers Tribunal can investigate errors by telecommunication operators. I hope noble Lords will appreciate that errors by telecommunications operators are very much in the minority.
The Investigatory Powers Commissioner is under a duty to keep under review the definition of a relevant error, so will no doubt raise concerns if they feel that the definition is incorrect. The commissioner’s reports under Clause 210 may include recommendations. They do not, therefore, need to be put under a duty to make recommendations, as Amendment 191J would achieve, if the definition of relevant error is working as intended and there is nothing to recommend.
Clause 207(3) states that a breach of a person’s convention rights is not necessarily a serious error. The noble Baroness, Lady Hamwee, observed that any breach of convention rights is a matter about which we should be very careful. I do not disagree with that. She asked how subsection (3) would affect the privacy provision in Clause 2. It would in no way weaken that clause, I suggest. As for Clause 207(3), which addresses the wording of Article 8, as the noble Baroness, Lady Hamwee, observed, Article 8 refers to proceedings that are in accordance with law, and therefore the provision is there in Clause 207(3). Subsection (3) really brings about only a factual clarification. The test for whether an error is serious is whether it has caused significant prejudice or harm to the person concerned. It follows that a breach of a person’s convention rights is not necessarily, or per se, a serious error. It may well be, for the reasons already outlined, but a technical breach that does not cause harm or prejudice may not be sufficiently serious for it to be necessary to inform the person.
One of the amendments seeks to require notification where the error has not caused serious harm or prejudice but may do so in the future. Given the difficult balance that has to be struck here, it is not necessary or appropriate for persons to be informed when the error has not caused them harm or prejudice but may do so in the future. We also consider that this would place the commissioner in the difficult position of speculating. Of course, we would expect the commissioner to keep under review the circumstances related to such an error. If harm was then caused to the person, the commissioner may then decide it is necessary to notify that person.
There will be transparency about this process. Clause 207(8) means that each year the commissioner has to publish the statistics of his or her decision-making. They have to publish the number of errors that they are aware of, which proportion of these they consider to be serious, and then what proportion of those errors were so serious that the public interest was best served by an individual being informed. This provision will ensure that the information will be in the public domain and that the IPC’s approach to errors will be subject to significant scrutiny.
Amendment 191F would require the commissioner, when deciding whether to notify a person, to take into account the matters in the new privacy clause. However, I am afraid that I do not think that the considerations in the privacy clause are directly or strictly relevant to this decision. If a public authority has failed to have regard to the matters in the privacy clause, that in itself may constitute a serious error. However, that will anyway be the case under the Bill as drafted and so this amendment is not necessary on that basis.
Amendment 191FA seeks to remove the need for the IPC to consider whether it is in the public interest for the individual to be informed. If this amendment were accepted, we would end up with a situation in which an individual was informed of an error even if it was completely contrary to the wider public interest for them to be so. I do not consider that that would be appropriate.
The Bill provides that the Investigatory Powers Commissioner must provide the individual with the details the commissioner considers necessary to bring a claim in the Investigatory Powers Tribunal. That is the manner in which the individual will vindicate their right of relief and is the manner provided for in the Bill. Amendment 191G would additionally require the provision of information “to be proportionate”. We do not think that these requirements are needed and they would tend to erect an additional threshold to be met before information is provided to a potential claimant. Therefore, they might well defeat the amendment’s intent. We think it is sufficient that the person is provided with such information as is necessary.
Similarly, Amendment 191GA seeks to amend Clause 207(6) so that, when informing an affected person, the IPC would have to inform them not only of their rights to apply to the IPT but also of “other details”. Presumably, these details would be over and above what was needed by the individual to bring a claim in the Investigatory Powers Tribunal and, of course, further disclosures can be handled by the IPT in the normal way. I am not sure what these extra details would be and they have the potential to damage national security if too much information was given to an individual. I repeat the point made earlier that the Bill provides that the means by which an individual can vindicate their right is by way of an application to the IPT, and they are to be given the necessary information for that purpose. Given all those circumstances, I invite the noble Baroness to withdraw the amendment.
Lord Beith
My Lords, these amendments address the fact that the fundamental principle in Clause 207 is very heavily qualified, even in cases where the error might be serious. I draw your Lordships’ attention to paragraph 5.42 of David Anderson’s report on bulk powers, in which he deals with errors. He rightly sets this in the context of a strong culture of compliance and self-reporting in the agencies when things go wrong. I agree with that, and it is right that we discuss it in that context. However, the fact remains that there are errors and, as the Minister pointed out, the statistics of errors are reported, so we know what they are. My concern is to be satisfied that most of these errors, if they impinge on the rights of a citizen, are notified to the citizen so that they know they can take further action.
I particularly draw attention to one case. David Anderson says in paragraph 5.42:
“In one very serious incident in 2014, an individual who deliberately undertook a number of unauthorised searches for related communications data had his employment terminated and vetting status withdrawn”.
That clearly indicates the point I made earlier: the agencies take this matter very seriously. I am interested in whether in that case the individual or individuals who may have been the victims of that improper use of the powers would be notified under the provisions of this clause, or whether the clause is so qualified that they might not be. Quite clearly, powers were abused by an individual acting without authority and wrongly, and the individual and the agency paid the price for doing so—he lost his job, which, from the limited description, seems entirely right. However, it is not clear whether the citizen, who had wrongly been the subject of this investigation, would know and would therefore be able to pursue his rights.
Lord Keen of Elie
Clearly, I am not in a position to comment on a particular case. However, in the context of what is said at paragraph 5.42, one has to remember that there is the further issue of whether it would have been in the public interest to make disclosure. That necessary test would have had to be met before there would have been disclosure, however serious the original breach.
The Earl of Erroll (CB)
My Lords, I have been listening to the debate and realised that of course people are concerned because they do not know what information is held. Sometimes people get into trouble because something is held on file and they do not know what it is. Only the subject knows what affects them and what does not. To take the example just given, where data may have been gathered by someone who is subsequently fired, that information may have been quite sensitive if revealed to someone in another organisation, and only the individual who was the subject of those unauthorised requests would know that. Therefore, this area bears examination. I am not sure how we should deal with that, but to rely just on the commissioner to know exactly how this would affect everyone would be difficult as well. It is worth thinking about this further.
Baroness Hamwee
My Lords, on the example my noble friend mentioned, it is hard to think that it would not be in the public interest for somebody who has been the subject of,
“a number of unauthorised searches for related communications data”,
to be notified. Of course I thank the noble and learned Lord for his detailed reply, although I am not sure whether he responded to my amendment on the code of practice.
I do not disagree about the national interest but it does not answer my point about reversing the burden so that the default position would be that there is notification unless it is not in the public interest—or, to put it another way, notification rather than notification only if it is in the public interest that somebody is informed.
On telecommunications operators and the report to the ICO, as the Bill seeks to do throughout, I sought to join up some of the dots in this landscape. Importantly, on the Human Rights Act, the noble and learned Lord says that the considerations in Clause 2 are not relevant; we may have another go at this on Report with a slightly different approach. However, he also said—I know that this was simply a turn of phrase—that Clause 207(3) does not weaken Clause 2, “I suggest”. I hope that he will be able to say that that amounts to an assurance to the Committee. Perhaps I may invite him to do that, otherwise we will certainly come back to this for an assurance.
Lord Keen of Elie
I was expressing my thoughts upon the matter but I hope that I was entirely positive about the point.
Baroness Hamwee
I may have to consider that.
Finally, I turn to the question of whether just details would give rise to a right to make a claim to the tribunal. The way this issue is described, it is almost as though the commissioner is standing in for the tribunal and making an assessment of what has happened. I think that it should be up to the individual to assess that for himself on the basis of information. However, we are in Committee and I beg leave to withdraw the amendment.
Lord Keen of Elie
I am obliged to the noble Baroness and the noble Lord. I will begin by responding to the two particular questions raised by the noble Lord, Lord Rosser. First, with regard to the observation made by David Anderson in his report at paragraph 2.26(g), I confirm it is the Government’s position that the authority is inherent in Clauses 205 and 211. On the provisions of Amendment 192, which I will come to, it will be in the first instance for the commissioner to determine the content of his report—but if that is not considered adequate, questions will be raised as to whether further particulars should be given.
I come back to Amendment 191K to Clause 208, moved by the noble Baroness, Lady Hamwee, which relates to the relationship between the commissioner and the Investigatory Powers Tribunal. I believe that the amendment is unnecessary. The commissioner will be under a duty to provide all documents, information and assistance that the tribunal needs for its investigation, consideration or determination of any matter. If the tribunal judges that it requires assistance, the commissioner is under a duty to provide it. Just as one wishes to rely on the tribunal’s judgment, so one wishes to rely also on the judgment of the commissioner. That is why it is sufficient in these circumstances that the word “require” should be provided for in the clause. In reality, of course, we expect the commissioner and the tribunal to have a strong working relationship, under which the tribunal will be free to call upon the expertise of the commissioner and their staff as necessary.
I appreciate the intention behind Amendments 191L and 192A to Clause 210 on the reporting duties of the commissioner—but, again, I believe that they are unnecessary. Currently, the Investigatory Powers Commissioner must make an annual report about the functions of the judicial commissioners and may make recommendations about their functions. Clause 205 is clear that the function of the commissioner is to review the use of the powers in the Bill by those who are authorised to use them. Therefore, the content of the commissioner’s annual report will be about the operation of the Act once it is in force.
Government Amendment 192 brings forward a change to Clause 210 to make it clear that the commissioner must publish a summary of the use of operational purposes in each of his or her annual reports. No doubt we shall talk more about operational purposes in the coming days in Committee, but this amendment will enhance the oversight and transparency of the use of operational purposes, as the noble Lord, Lord Rosser, observed. I hope that I have given sufficient clarification of how that report should proceed. Clearly, we will be open to further discussion about that as we go forward.
With respect to Amendment 192C, Clause 211(7)(a) places a duty on,
“any member of a public authority”,
to provide assistance to the judicial commissioners. The Government intend for this duty to be a broad one, encompassing everyone working for that public authority. But I note the observations of the noble Baroness, Lady Hamwee, and if that intention is not clear from the drafting, we will reconsider the clause. I therefore invite the noble Baroness to not move her amendment.
Amendment 194G seeks to amend Clause 220, which replaces Section 13 of the Regulation of Investigatory Powers Act 2000 and provides for the continued existence of the Technical Advisory Board. As I mentioned in previous Committee sessions, the board will advise 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 or postal operator for review. The board comprises a balanced representation of those on whom obligations may be imposed by virtue of notices—namely, telecommunications operators—and of those persons entitled to apply for warrants or authorisations under the Bill. These individuals will have a detailed technical understanding of the capabilities provided for by the notices.
Amendment 194G would provide for the Investigatory Powers Commissioner to monitor and report on the performance of the board. This, I suggest, is unnecessary. The Technical Advisory Board and the Investigatory Powers Commissioner conduct very different functions during the review process. The primary role of the board is to advise the Secretary of State on cost and technical issues during a review. Should the Secretary of State decide to vary or confirm the effect of the notice after considering this advice, the Investigatory Powers Commissioner must review and approve the Secretary of State’s conclusions as to the necessity and proportionality of the notice.
Noble Lords will see that the board will provide a different viewpoint from that of the commissioner during a review. Indeed, the robustness of this safeguard lies precisely in the fact that the board and the Investigatory Powers Commissioner play distinct roles in the review process. As such, it simply would not be appropriate for the Investigatory Powers Commissioner to oversee the work of the board.
It is of course right that the Government keep under review the performance of their non-departmental public bodies, including the Technical Advisory Board. This is part of the normal process of ensuring that those bodies adhere to best practice: for example, in their management of resources. I assure noble Lords and the noble Baroness, Lady Hamwee, that the Home Office, as sponsor of this board, already does so, adhering to Cabinet Office guidance in the process. The board’s annual report is published on the internet for public scrutiny.
Although I consider that oversight of the board by the commissioner would be inappropriate, I wish to make it clear that the Bill already provides for the commissioner to comment on the work of the board in his or her annual report. Clause 210 allows the Investigatory Powers Commissioner to make recommendations about any matters relating to the commissioner’s functions. The commissioner has oversight of the giving of notices and can therefore make such recommendations as he or she considers appropriate on matters relating to notices, including the role of the Technical Advisory Board in respect of such notices.
I hope that this satisfies the noble Baroness that oversight of the board’s performance by the Investigatory Powers Commissioner really is not necessary. It is my view that the scrutiny of the board’s performance and any changes to its membership continue to be overseen by the sponsoring body, the Home Office, and its Secretary of State, and not by another independent body.
It is also worth noting that, to date, the board has never been required to fulfil its statutory role—hence there has been very little work to scrutinise. This reflects the close consultation between the Government and communications service providers before a notice is given.
I appreciate that Amendment 192B intends to highlight the importance of safeguards to protect privacy. I share this sentiment, and there are safeguards to protect privacy running through the Bill. However, it is for those who are actually utilising the investigatory powers to ensure that safeguards to protect privacy are applied. It is then the job of the judicial commissioner to ensure that they are actually being correctly applied. The Government introduced an amendment to Clause 205(5) to make it clear that the commissioner must keep under review, by way of audit, inspection and investigation, the operation of safeguards to protect privacy.
In these circumstances, I invite the noble Baroness, Lady Hamwee, to withdraw the amendment.
Baroness Hamwee
My Lords, I am aware that there are a number of noble Lords in the Chamber for the next business, so I will be very brief and mention just a couple of things. On the question of a “public authority”, will the Minister, in one of the very helpful letters that we receive following Committee days, tell us the Home Office’s further thoughts on this to save a possible further amendment at Report?
Lord Keen of Elie
I will endeavour to ensure that that is done before Report in order that the position can be clarified.
Baroness Hamwee
I am grateful for that. My next request is for an explanation of the assurance given with regard to paragraph 2.26(g) of David Anderson’s review. I do not doubt the assurance, but it would be helpful to understand the logic.
Baroness Hamwee
I am very grateful for both those assurances and beg leave to withdraw the amendment.
Lord Keen of Elie
“( ) information about the operational purposes specified during the year in warrants issued under Part 6 or 7,”