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.