Investigatory Powers Bill

Lord Paddick Excerpts

Wednesday 13th July 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, my Amendment 44 in this group might appear to want to resurrect the Wilson doctrine but it is really only to give it a decent burial. The Constitution Committee, of which I am a member, said in its report published on Monday that,

“the surveillance of parliamentarians is a significant constitutional issue”,

and that the committee,

“would welcome clarification from the Government of its current understanding of the Wilson Doctrine”.

The amendment allows for that and allows us to consider whether the procedures in the Bill make a better job of dealing with the difficult issue of whether communications of an elected member of a legislature should be intercepted and, if so, on what authority.

While it existed, the Wilson doctrine had merit in that it produced a higher threshold, mainly the involvement of the Prime Minister, and that in so far as it was observed—I have reason to believe that it often was observed in practice and that this was recognised to be a different situation to other interceptions—it played that useful role. However, it was riddled with failings. All it did, if your Lordships read it, was to set out the policy of a particular Government at a particular time. What it of course set out was not that the communications of parliamentarians would never be intercepted but that the Government’s policy at the time was not to do so and the Prime Minister would come before the House at a time of his choosing—presumably at a time when it would no longer be damaging to the investigation—and advise the House that the policy had been changed. It was a very odd doctrine; the Prime Minister could come to the House and say, “We’ve changed the policy but we’re going to change it back now because that inquiry has been dealt with”. It is one of the inherent inconsistencies in the doctrine.

It was never clear whether the doctrine bound any subsequent Government either not to intercept MPs’ communication or to come to the House at a time of their choosing to reveal that the policy had been changed. It raises a fascinating issue since, so far as I can see, no Prime Minister has ever come to the House and said what situation we were in—or are in, until this legislation is passed—under that doctrine. It clearly was not fit for purpose. We therefore have to ask ourselves whether the procedures in the Bill that essentially try to do the same thing—that is, to involve the Prime Minister and raise it to a higher level within the Executive—are a sufficient extra safeguard for the constituents and whistleblowers who will communicate with their MPs or with legislators. They may be doing so because they are aware of some evil going on within the very organisation that might seek to intercept their communications. We have to have some regard to this.

The Joint Committee on Human Rights recommended that the Speaker of the House of Commons and, by analogy, Speakers of other legislatures should have a role in this. Although I am attracted by the intention, I find it slightly difficult because of the position it would put the Speaker in. The analogy is drawn with the procedures which were recommended following the serving of a search warrant in the House of Commons in the Damian Green case. It was felt that if in future the Speaker was consulted before a search warrant would be executed on parliamentary premises, then it was an appropriate precedent.

There is trouble with that precedent. If a search takes place on the premises it does not remain secret for very long. It becomes pretty obvious that it has taken place. If an interception was taking place, then the Speaker might be in possession of the knowledge that MP X’s communications are being intercepted for a considerable period, during which he has to have normal dealings with that Member of Parliament, call that Member of Parliament in debate and so on. That strikes me as a rather difficult position in which to put the Speaker of the House of Commons, the Lord Speaker in this House or a Speaker in any other legislature.

Incidentally, the involvement of other legislatures in the provisions in the Bill is an advance on the Wilson doctrine which applied only, as far as I am aware, to the House of Commons. I find myself before this House having to rely on the Bill as it stands and the prime ministerial involvement as being a significantly higher threshold. As one has always been worried about the supremacy of the Executive in this activity, I cannot be entirely content with that except for the fact that we are building in a process of judicial oversight, which I have advocated for many years and I am delighted to find in the Bill, and have been discussing what the conditions for that oversight are.

I would not want us to get into the position which, as I understand it, would arise from the amendment moved by the noble Baroness because I do not want a judicial authority appearing to be the initiator of an interception. That seems to me to get the role completely wrong. A law and order organisation or national security organisation has to be the initiator and the Secretary of State one of the routes through which it goes on its way to be authorised. The procedure under the Bill would also involve the Prime Minister in this process. I probably have to be content with that unless someone comes up with something better or someone convinces me that the Joint Committee’s recommendation does not have the disadvantage that I mentioned. Of course, I do not have the slightest intention of pursuing Amendment 44 and attempting to write into the Bill the provisions of the obsolete Wilson doctrine but it is perhaps worth reminding ourselves of it.

[Lord Paddick (LD)]

My Lords, my noble friend Lady Hamwee and I have Amendments 45, 85A and 85B in this group. While I share the concerns of the noble Baroness, Lady Jones of Moulsecoomb, regarding the potential for partisan action in these circumstances, I would have thought if there was ever a need for political accountability in terms of who is going to be targeted by a warrant of this kind, it is where a parliamentarian is being targeted. I can see the tension and the dilemma in that.

The Bill states in Clause 26(2) that additional safeguards for Members of Parliament include the fact that:

“The Secretary of State may not issue the warrant without the approval of the Prime Minister”.

Our Amendment 45 suggests that where the warrant relates to a Member of the Scottish Parliament, it should not be issued without the approval of the First Minister of Scotland, as the most appropriate person to give such approval. Perhaps the Minister can explain why it should be the Prime Minister in every case.

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[Earl Howe]

My Lords, I shall also speak to the other government amendments in this group. These amendments seek to make minor changes to the notice-giving provisions in Part 9 of the Bill. Clause 225 provides for the Secretary of State to give a notice to a telecommunications operator in the United Kingdom requiring it to take steps in the interests of national security. Such a power is a critical tool in protecting our national security.

The power can only be exercised if the Secretary of State is satisfied that the steps required by a notice are necessary in the interests of national security and proportionate to what is sought to be achieved. The Government amended the Bill in the other place to provide for the application of the double-lock authorisation process to national security notices. This means that a national security notice could not be given unless a judicial commissioner had approved it.

This will replace the existing power in Section 94 of the Telecommunications Act 1984 which has been used for a range of purposes, including for the acquisition of communications data in bulk. This is now provided for in Part 6 of the Bill. Section 94 of the Telecommunications Act will be repealed. The power provided for by this clause will be used for a much narrower set of purposes than Section 94, but those purposes are nevertheless critical to our national security. The type of support that may be required from communication service providers includes the provision of services or facilities which would assist the intelligence agencies to carry out their functions more securely, or in dealing with an emergency as defined in the Civil Contingencies Act 2004.

A national security notice cannot be used for the primary purpose of obtaining communications or data. Clause 225(4) provides that a national security notice may not require the taking of any steps the main purpose of which is to do something for which a warrant or authorisation is required under the Bill. This amendment makes it clear that it is also the case that a notice may not require the taking of any steps the main purpose of which is to do something for which a warrant or authorisation is required under legislation which authorises the use of investigatory powers.

Amendment 90 lists the other statutes that provide for agencies to obtain data covertly—namely, the Regulation of Investigatory Powers Act 2000, the Regulation of Investigatory Powers (Scotland) Act 2000 and the Intelligence Services Act 1994. The amendment puts it beyond doubt that a national security notice cannot be used to circumvent the need to obtain a warrant or authorisation provided for in the Bill or in other relevant statutes.

I turn to Clause 226, which provides for the Secretary of State to give a technical capability notice to a telecommunications or postal operator requiring the operator to maintain permanent technical capabilities. The power builds on the current power in the Regulation of Investigatory Powers Act 2000 where a company can be obligated to maintain a permanent interception capability. The purpose of maintaining a technical capability is to ensure that, when a warrant is served, companies can give effect to it securely and quickly. The provision is particularly important when law enforcement or the security and intelligence agencies need to work at pace to identify and counter the actions of those who pose an immediate threat to the UK.

Subsection (7) of that clause provides for a technical capability notice to specify the period within which the steps set out in the notice are to be taken by the relevant operator. In practice, it will often be the case that a notice will require the creation of new technical systems. The time taken to design and construct such a system, including developing new pieces of technical hardware and implementing appropriate security measures, may lead to different elements of the notice taking effect at different times.

Government Amendments 94 and 95 propose a minor change to subsection (7) of the clause to make it clear that, where appropriate, a notice will permit different steps required in the notice to be taken at different times. The amendment will provide clarity to operators and ensure that the Bill reflects what needs to happen in practice. The Government propose a further minor amendment to the notice-giving provisions, this time to Clause 229, which provides for the Secretary of State to vary or revoke technical capability notices and national security notices.

Amendment 106 reads across provisions in Clause 228 that provide for the primacy of national security notices over aspects of the Communications Act 2003. The amendment does not change the effect of the provision but would make explicit that, when a national security notice is varied under Clause 229, the obligations in the notice as varied continue to have primacy over obligations imposed by Part 1, or Chapter 1 of Part 2, of the Communications Act 2003. The amendment replicates a provision previously provided for in the Telecommunications Act 1984, as amended by the Communications Act 2003, and removes any ambiguity about how the obligations set out in a national security notice as varied relate to those provided for in relevant parts of the Communications Act 2003.

Lastly, the Government propose Amendments 107, 110, and 111 to Clause 230. This clause makes provision for a person to request a review of the requirements imposed on them in a technical capability notice, or a national security notice. A person may refer the whole or any part of a notice to the Secretary of State for review after a notice is given or varied. The Government amended the Bill in the other place to provide for the double lock to be applied to the giving of notices. This means that a judicial commissioner must approve the Secretary of State’s decision to give a notice. The amendments that we are now considering would revise the review process to reflect this new role.

The proposed revised process is as follows: before reaching a decision on the outcome of the review, the Secretary of State must consult a judicial commissioner and the technical advisory board. The technical advisory board, a group of experts drawn from telecommunications operators and the intercepting agencies, will be required to advise on the technical feasibility of the requirements set out in a notice and the costs. The judicial commissioner will consider the requirements imposed by the notice on proportionality grounds.

As was previously the case, the judicial commissioner and the technical advisory board will be required to provide an opportunity for the person to whom the notice has been given and the Secretary of State to present evidence or make representations. The conclusions of the judicial commissioner and the board will be reported to the person and the Secretary of State. After considering these conclusions, the Secretary of State may decide to confirm the effect of the notice, vary the notice or withdraw it. Where the Secretary of State decides to confirm the effect of a notice or vary a notice, the Investigatory Powers Commissioner must approve the decision. Until the commissioner has approved the review decision, there is no requirement for the person who has referred the notice to comply with the specific obligations under review.

These amendments will strengthen the review process and will properly reflect the role of a judicial commissioner in approving the decision to give a notice. I hope the Committee will feel able to accept these amendments, and I beg to move.

[Lord Paddick]

My Lords, my noble friend Lady Hamwee and I have three amendments in this group. As a means of probing concerns about both national security notices and technical capability notices, we are suggesting that Clauses 225 and 226 stand part of the Bill, but we propose, in Amendment 92, that the provision in Clause 226(5)(c),

“obligations relating to the removal by a relevant operator of electronic protection applied by or on behalf of that operator to any communications or data”,

be deleted. These provisions are some of the most concerning for communications companies and the technology sector in the UK as they appear to provide open-ended and unconstrained powers, although I accept that the amendments that the Government have put forward today, as outlined by the Minister, provide significantly more oversight than was originally suggested in the Bill.

National security notices can require a communications provider in the UK,

“to carry out any conduct, including the provision of services or facilities, for the purpose of”—

this is in Clause 225(3)(a)(i)—

“facilitating anything done by an intelligence service under any enactment other than this Act”.

So the power is not limited to facilitating the use of powers under the Bill but any other legislation as well. The power is to do anything that the national security notice requires.

Technical capability notices enable the Government to require communications operators to comply with any “applicable obligations” specified in the notice, and the recipient must not only comply but must not disclose that they have been served with the notice, seemingly including, under Clause 226(5)(c), to remove encryption. However necessary or proportionate such notices may be—and I accept that, with the double lock now in place, that will be tested—there could be a suspicion that UK communications companies and the UK technology sector are subject to such notices, undermining customer confidence in the security of the network or device that they are using.

Although such a notice may be served to persons outside the UK, and may require things to be done outside the UK, such notices are not legally enforceable outside the UK. As well as undermining public confidence in the security of UK networks and technology, such notices have the potential to act as a competitive disadvantage to UK technology businesses. Instead of the power to force a company to remove encryption from a whole service or technology, alternative and more targeted powers should be used instead.

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For all the reasons I have outlined, these amendments are unnecessary and undermine the important principle that there should be no guaranteed safe spaces online for terrorists and criminals to communicate.

[Lord Paddick]

Can the Minister comment on the fact that increasingly, encryption is end-to-end, and can he say whether national security notices and technical capability notices would be of any use in circumstances where people were using end-to-end encryption? Can he also comment on a suggestion that instead of these notices, targeted equipment interference would be more useful in that it could deal with the problem of end-to-end encryption?

[Earl Howe]

Certainly, targeted equipment interference is, if you like, the next step should interception not be possible for any reason. However, I will answer the noble Lord’s first question, on end-to-end encrypted services. We start from the position that we do not think that companies should provide safe spaces to criminals to communicate. They should maintain the ability, when presented with an authorisation under UK law, to access those communications. We will work with industry to ensure that, with clear oversight and the legal framework I have in part alluded to, the police and intelligence agencies can access the content of terrorists’ and criminals’ communications when a warrant has been approved in the usual way.

We will of course consider what steps are reasonably practicable for an individual telecommunications operator, taking account of a range of factors, including technical feasibility and likely cost. We recognise that what is reasonably practicable for one telecommunications operator may not be for another, so any decision will have regard to the particular circumstances of the case. However, I cannot go into our relationships with individual companies, as the noble Lord will understand. It is important to understand that the Bill does not ban encryption or do anything to limit the use of fully encrypted services.