Investigatory Powers Bill

Lord Lester of Herne Hill Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

I, too, like the noble Lord, Lord West of Spithead, and others, welcome this Bill as a significant step towards providing a much-needed clear and transparent basis for the investigatory powers used by the security and intelligence services and law enforcement authorities. I also welcome the safeguards that it contains, some of which need to be strengthened. We must await the expert assistance of David Anderson’s report on the key issue of bulk powers. David Anderson is about the last person left in this country that I really trust on some of these issues.

I am grateful for briefing from the Law Societies of all four corners of the UK, the Bar Council of England and Wales, the Chartered Institute of Legal Executives and the NGOs, Liberty and Justice. I shall talk mainly about legal professional privilege, an issue raised some years ago by my noble friend Lady Hamwee.

It is essential that there is a powerful independent body able to ensure that the vital powers of the state and its agents are not misused. David Anderson QC, the wise and manifestly independent reviewer of terrorism, wrote in his report, A Question of Trust:

“Trust in powerful institutions depends not only on those institutions behaving themselves (though that is an essential prerequisite), but on there being mechanisms to verify that they have done so. Such mechanisms are particularly challenging to achieve in the national security field, where potential conflicts between state power and civil liberties are acute, suspicion rife and yet information tightly rationed”.

The Government’s simplification of the oversight system in the Investigatory Powers Commission is welcome. The commission should have the resources needed to improve transparency, efficiency and public trust in the vital work of the security and intelligence services. The commission needs to be properly funded and have the services of an amicus on difficult warrant applications. It is in the interests of public trust and confidence that the judicial commissioners are appointed by the Prime Minister on the recommendation of an independent appointments committee established by the Commissioner for Public Appointments. I hope that the Minister, who, I am delighted to mention, is a member of my chambers, as is the noble Lord, Lord Pannick—it is a curious, triangular situation—will be able to reply positively to these suggestions.

I turn to legal professional privilege, which has been spoken about powerfully by the noble Lords, Lord Rosser, Lord Pannick and Lord Paddick. It is a constitutional right inherent in the rule of law, which protects the individual’s right to consult a legal adviser in absolute confidence, knowing there is no risk that information will become known to a third party without the client’s clear authority. It is the right to speak safely with a lawyer, and it has been protected by our common law—and I dare say in Scotland, too—since at least the 16th century.

The mere prospect of surveillance creates the risk of a chilling effect on openness of communications with a lawyer. The accuracy of legal advice is an immediate and obvious casualty, but so is the rule of law. Without being able to discuss candidly, defending lawyers might not know about important defences open to a client. Courts may adjudicate cases on a misleading or incomplete basis. When people cannot speak safely with their lawyers, it is not only individual privacy that is affected but the administration of justice as a whole.

There is a danger of miscarriages of justice for individuals in litigation with the state. The Government may respond that there will be no unfair advantage when they monitor individuals’ meetings with lawyers, because they can maintain a Chinese wall between spies and prosecutors. But that was not the finding of the Court of Appeal in 2011, when it struck down the convictions of 20 environmental protestors whose conversations with a lawyer had been monitored by an undercover police officer, Mark Kennedy. Nor was it the finding of the Investigatory Powers Tribunal in April last year, when it ordered GCHQ to destroy illegally intercepted communications between a Libyan rendition victim, Abdel Belhaj, and his lawyer. In mishandling those data, GCHQ rightly admitted that it had broken its own rules and had broken the law.

Prohibiting the targeting of legally privileged communications does not impair the ability to bring dishonest lawyers to justice. Legal privilege attaches only to communications between lawyer and client genuinely aimed at obtaining legal advice. If the consultation is a cover for a conversation whose true aim is to further a criminal purpose, it is not protected. The Bill should forbid deliberately targeting legally privileged communications.

This may be an unnecessary academic, technical point, but I still think it worth mentioning. Reference has been made to an iniquity exception, but it is more accurately described as a constraint on the scope of the privilege. For example, Section 10(2) of the Police and Criminal Evidence Act 1984 states:

“Items held with the intention of furthering a criminal purpose are not items subject to legal privilege”.

That, I think, is the correct approach.

When compelling evidence suggests that the privilege is being abused, a judicial commissioner should be required to authorise covert information-gathering. There should be no grant or modification of a warrant likely to capture privileged communication unless there is prior judicial approval. This protection is written into the Bill in respect of journalists’ sources—see Clause 73. Legal professional privilege needs equal protection. There is also a need for safeguards to ensure that any legally privileged communications intercepted accidentally or incidentally are immediately destroyed.

Like the Joint Committee on Human Rights, I recognise the value of thematic warrants, but the Bill’s provisions concerning the possible subject matter of targeted interception and targeted equipment interference warrants are too broadly drafted. As the JCHR recommends—and I agree with it—the Bill should be amended to circumscribe the possible subject matter of warrants in the way recommended by the Independent Reviewer of Terrorism Legislation. That will ensure that the description in the warrant is sufficiently specific to enable the person unknown, but who is the subject of it, to be identified and to prevent the possibility of large numbers of people being potentially within the scope of a vaguely worded warrant. One is reminded, for those who are interested in history, of the kind of Entick v Carrington problems that were raised in the 18th century.

The JCHR has said that,

“the power to make major modifications to warrants for targeted interception, without judicial approval, is so wide as to give rise to real concern that the requirement of judicial authorisation can be circumvented, thereby undermining that important safeguard against arbitrariness”.

I agree with the JCHR that major modifications to warrants should require approval by a judicial commissioner.

The independent reviewer has said that he knows of no other country in which the Secretary of State holds responsibility for authorising police warrants; judicial authorisation is sufficient. The Home Secretary signs some 1,600 warrants each year, not including national security warrants. If the requirement of her direct approval for police warrants were removed from the Bill, she would have 70% fewer warrants to approve, giving her more time to focus on vital national security interests. That makes good sense.

As I said at the outset, I welcome the Bill and hope that it will be significantly improved, as suggested by my noble friend Lord Paddick and others in the debate. I look forward to the Minister’s response.

[Lord Butler of Brockwell (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Lester of Herne Hill. It brings back the arguments we used to have about the powers of the intelligence agencies on dog walks around Brockwell Park—which, incidentally, is not my personal estate. He was then counsel in the Spycatcher case; I was about to be Cabinet Secretary. He did not trust me then and since he says now that David Anderson is the only person he does trust, that situation clearly has not changed.

When I last spoke in the House, on the Motion of the Leader of the Opposition about the powers of Parliament and of this House, I was critical of much of the legislation introduced into Parliament. I do not withdraw that but I do not make those criticisms of this Bill. On the contrary, like others who have spoken, I commend the way in which the Government have brought forward the Bill and the way in which it was debated and scrutinised in the other place.

The Government published a draft of this Bill in the autumn. Despite the fact that preparation of it had been informed by authoritative reports from the Independent Reviewer of Terrorism Legislation, the Intelligence and Security Committee of Parliament and RUSI, the Government produced it when it was, frankly, still in the course of preparation. It was just being baked. But that was a thoroughly good thing to do because it could then be considered by a joint pre-legislative committee—on which I had the privilege of serving, under the noble Lord, Lord Murphy—by the Intelligence and Security Committee and by the House of Commons Science and Technology Committee. That enabled a large number of changes to be made and improvements to be introduced before the Bill was brought before Parliament. At the same time, the Government undertook widespread consultation with interested parties outside Parliament, including the communications service providers, which were able to give evidence to the parliamentary committees. So there was a very transparent method of preparing this Bill, which was necessary in view of its complexity.

I have read in full the debates in Committee, on Report and at Third Reading in another place. Without being patronising, I think that they show the House of Commons at its best. There were no less than 16 Committee hearings. The Government responded constructively to the Opposition and, as has been said, introduced many amendments to respond to their points. As a result, it is remarkable that the Official Opposition did not vote against the Government in a single Division.

Of course, many matters were left over for this House, and I will come on to those, but I would also like to say—seeing as I am to be followed by the noble Marquess, Lord Lothian, who is a member of the Intelligence and Security Committee—that the scrutiny has shown the strength of the mechanisms that Parliament has for considering issues of this sort. In addition to the specialist committees that I have referred to, the Intelligence and Security Committee is able to operate within the ring of secrecy around these highly classified issues, and has shown itself capable of reassuring Parliament in some areas but also of proposing additional safeguards in other areas where oversight of the intelligence agencies needs reinforcement. That has been a very valuable contribution.

None the less, as others have said, there is much work for your Lordships’ House to do. There are important issues in the Bill that still need to be determined. Part of the Government’s response to criticisms raised in the other place was to promise further consideration in your Lordships’ House. That covered such important issues as protection of legal privilege, on which the noble Lord, Lord Lester of Herne Hill, and other noble Lords spoke; further protection of journalistic freedom; the definition of crimes for which access to communications data is justified; and the whole issue of the operational case for bulk powers. On top of that, although clearly the Home Office has made much progress in discussions with communications providers about the definition of internet connection records, questions remain about both the effectiveness of those and the cost of collecting them. We must remember that hanging over the whole issue is the case brought in the European court by David Davis MP and Tom Watson MP about the retention of communications data, in which there may well be further developments during the passage of the Bill.

The intention is that this House should start Committee before the Summer Recess but not complete it. That makes sense because by the end of the Recess we can expect to have David Anderson’s report on the operational case for bulk powers, which will be central to considering Parts 6 and 7 of the Bill. This is a very difficult but very important Bill. I hope that this House can maintain the very thorough but also very co-operative and constructive tone of the scrutiny that has taken place on it so far.

[Lord Lester of Herne Hill]

I apologise to the noble Lord and the whole House for the hurt I have caused him by suggesting that I trust David Anderson more than anybody else. I trust the noble Lord, Lord Butler of Brockwell, almost as much.

--- Later in debate ---

[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.