Investigatory Powers Bill

Debate between Lord Paddick and Baroness Hayter of Kentish Town

Report: 2nd sitting (Hansard - part two): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Paddick (LD)]

My Lords, this amendment stands in my name and that of my noble friend Lady Hamwee. It introduces to the Bill a body corporate known as the investigatory powers commission that comprises the Investigatory Powers Commissioner, judicial commissioners and staff to support the commissioners. I am relying heavily on, and am very grateful to, the Interception of Communications Commissioner’s Office in this matter.

At present the Bill creates only a chief judicial commissioner and a small number of judicial commissioners. The commissioners will be responsible for approving approximately only 2% of the applications falling within the remit of the oversight body. Most of the applications made under the Bill are likely to be for communications data, for example, individual applications for which are not subject to prior approval by a judicial commissioner. The remaining 98% will be subject only to post-facto oversight.

The post-facto oversight will be carried out predominantly by specialist inspectors, investigators, analysts and technical staff working to the Investigatory Powers Commissioner, and it is important for those individuals to have a delegated power to require information or access to technical systems. According to the Interception of Communications Commissioner’s Office:

“The creation of a Commission is crucial to achieve a modern, inquisitive oversight body that has the expertise to carry out investigations and inquiries to the breadth and depth required and the intellectual curiosity to probe and challenge the conduct of the public authorities”.

I shall expand on what IOCCO means by that.

First, it means that the specialists do not have to wait to be tasked by the commissioner but can use their initiative and expertise to follow the evidence and conduct post-facto scrutiny where they believe it is most needed. Secondly, other commissions, such as the Independent Police Complaints Commission, are bodies corporate whose investigators have all the powers of their commission. This prevents police officers saying, “I’m not talking to you, Mr Investigator. I am only going to talk to a commissioner”. The Government may say that there is no direct parallel here but they would be wrong.

The Intelligence Services Commissioner was asked by the then Home Secretary, Theresa May, to carry out an investigation into what the security services knew about those involved in the murder of Fusilier Lee Rigby. In his supplemental report to his 2015 annual report, Sir Mark Waller, at paragraph 5.3(4), talks about his attempts to have counsel, Mr Sanders, who was carrying out the investigation on the commissioner’s behalf, present during the interviews of some of those involved:

“Prior to these interviews taking place, SIS told me that Desk Officer 1 and Intelligence Officers 1 and 3 objected to Mr Sanders being present and so he did not attend. I have since been told by SIS that this objection in fact came from its senior management. I very much regret that this was not made clear to me at the time as I would have challenged it” "

The fact is that, unless those carrying out post-facto scrutiny are part of a body corporate, as in the case of the IPCC, those whom they are supposed to be scrutinising can refuse to co-operate with them and demand that they deal with the Investigatory Powers Commissioner alone.

The IOCCO says:

“Putting the oversight Commission on a statutory footing will be a huge step towards guaranteeing independence, capability and diversity within the organisation which will inspire public trust and confidence”.

It goes on to say:

“Creating an oversight Commission would also help make a distinction between the approval and post-facto audit elements of the oversight body, addressing a concern raised by a number of witnesses to the Joint Committee that the Judicial Commissioners should not be perceived to be ‘marking their own homework’”.

This of course refers to the fact that in the 2% of cases where a warrant was approved by a judicial commissioner, without the establishment of a commission it could understandably be perceived by the public that the judicial commissioners were post-facto auditing the decisions of other judicial commissioners. Although this may be an accepted practice in the legal profession—in the courts and so forth—it is likely to be lost on the general public. The Interception of Communications Commissioner’s Office concludes:

“We urge the Government to implement this recommendation which was also made by the RUSI Independent Surveillance Review, David Anderson QC and the IP Bill Joint Committee”.

The amendment seeks to implement that recommendation. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we are satisfied that the speedy and effective establishment of the office of Investigatory Powers Commissioner will provide the staff, expertise and structure to implement the Bill. As the noble Earl will know, we have queried whether the resources will be made available and we will continue to keep an eye on that. However, we see no rationale as to why a body corporate, with all the governance, other requirements and bureaucracy, would be better at achieving the balance that we seek, which is the timely, appropriate and thorough oversight of the powers in this Bill, taking full account of civil liberties and the need to prevent or apprehend crime, and dealing with threats from those who wish us harm.

It is possible that I have misunderstood what the noble Lord, Lord Paddick, said, but it seemed that he wanted the staff to have some of the commissioner’s authority. For ourselves, we have relied very much on the judicial commissioners, with the powers given to them under the Bill, and the IPC himself or herself to do this, and we would certainly not want to detract from their authority in any way.

Investigatory Powers Bill

Debate between Lord Paddick and Baroness Hayter of Kentish Town

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Lord Paddick]

I also thank the Minister for this impressive package of amendments. It clearly has to be necessary and proportionate in some circumstances to investigate a journalist. However, I am a little concerned about a law enforcement chief being able to authorise such acquisition through equipment interference, although there is now the reassurance of a judicial commissioner, which did not exist before. I accept what the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Black of Brentwood, said about the concern of the National Union of Journalists that there should be prior notification and the ability to make representations. However, I think it is reasonably clear how difficult it would be to differentiate between the cases to which the measure would and would not apply. In all the circumstances, I think that this is more than the best that we could have hoped for. We are very grateful.

[Baroness Hayter of Kentish Town]

My Lords, I hope that my noble friend Lord Rooker has not ended the Minister’s political career. However, I think we all can say that when we come here our political careers are behind us. I join the noble Viscount, Lord Colville, the noble Lord, Lord Black, and others in thanking the Ministers and their team for the significant changes that have been made. I will not go through all of them, but the Government’s adding in Amendment 11 a reference to,

“information identifying or confirming a source of journalistic information”,

needing extra protection is very welcome, in addition to the other overriding requirement of there being no other way of getting the information.

As has been mentioned, government Amendments 30 and 31 insert special procedures for journalistic material and, perhaps of even more concern to journalists, journalists’ sources. As has just been said, the NUJ in particular wants other changes to be introduced but the idea of prior notice for covert investigation is in itself a contradiction too far. We are, however, sympathetic to the essence of the journalists’ approach—that is, their desire to protect not simply their members but whistleblowing members of the public through whom misdeeds often come to light. However, there will be occasions when terrorists or others who wish us harm will have been in touch with a journalist and the sole indication of that person’s whereabouts might exist on a journalist’s phone. Unless we are absolutely sure that we would never in any circumstances want those who protect us to be able to access that information, we need the warrants and the powers in the Bill. We hope very much that the safeguards provided will keep those exceptions to a minimum—I think that the word used was “rare”—and we hope that the IPC, in reviewing what happens, will always bear in mind the cost to all of us if fears of retribution deter good whistleblowers from getting misdeeds into the public domain. However, those are in a way fairly small instances. I commend to the House the changes that have been made.

--- Later in debate ---

[Lord Paddick]

My Lords, I support the amendments for the very reasons that the noble Lord, Lord Butler of Brockwell, has just set out. Bulk powers are exceptional powers and they raise concerns among the public. There are specific offences in other parts of the Bill and in other legislation, and now we are focusing on deliberate abuse. I echo what the noble Lord, Lord Butler, said about the integrity of the security services, but we believe that these specific offences are necessary for public reassurance, if nothing else.

[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.

Investigatory Powers Bill

Debate between Lord Paddick and Baroness Hayter of Kentish Town

Tuesday 19th July 2016 Lords Chamber

[Lord Paddick]

My Lords, I shall speak to Amendment 116 in my name and that of my noble friend Lady Hamwee. We also have our names to Amendments 154 and 235 in this group.

These amendments relate to a government commitment not to require telecommunications operators to retain third-party data. On 4 November 2015 in a Statement in the other place, the then Home Secretary said that the Bill,

“will not include powers to force UK companies to capture and retain third party internet traffic from companies based overseas”.—[Official Report, Commons, 4/11/15; col. 969.]

However, Clause 58(5)(c) states:

“An authorisation … may, in particular, require a telecommunications operator who controls or provides a telecommunication system to obtain or disclose data relating to the use of a telecommunications service provided by another telecommunications operator in relation to that system”.

Surely this means third-party data.

Amendment 116 would alter Clause 58(5)(c) to read, “may not require”. The key point here is that telecommunications companies should not be forced to obtain third-party data. The draft code of practice on communications data states at paragraph 2.61:

“A data retention notice can never require a CSP to retain the content of communications or third party data”.

Paragraph 2.66 states:

“A CSP cannot be required to retain third party data as part of an ICR”.

Amendment 154 would add a new subsection to Clause 83(2)—the clause headed “Powers to require retention of certain data”—to make explicit that a retention notice may,

“not require a telecommunications operator to retain any third party data, unless that data is retained by the telecommunications operator for its own business purposes”.

This is to distinguish between communications data that the telecommunications operator may have and being forced to acquire third-party data that it does not have.

Amendment 235 would restrict the definition of communications data in Clause 233(5) so that it relates to the provision of the service by that operator and not a third party. I beg to move Amendment 116.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I have added my name to Amendment 154 and will not repeat what has been said about it. It simply asks the Government to make explicit what they have said—namely, that the retention of third-party data will not be required. It would be helpful to make that clear in the Bill.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, as the noble Lord, Lord Paddick, has explained, these three amendments all deal with the issue of third-party data. Amendment 116 seeks to prevent public authorities from acquiring third-party data, Amendment 154 seeks to put the Government’s commitment not to require retention of third-party data on to the face of the Bill and Amendment 235 seeks to amend the definition of communications data to exclude from it third-party data.

On the acquisition of third-party data, the Bill maintains the existing position under RIPA that public authorities can acquire third-party data where necessary and proportionate to do so. But I want to be clear here—a provider is required to comply with a request for communications data, including a request for third-party data, only where it is reasonably practicable for them to do so. It is absolutely right that, where a communications service provider holds, or is able to obtain, communications data, whether in relation to its own services or those provided by a third party, then the data should be available to public authorities for the statutory purposes in the Bill. Put simply, data that already exist, are already held and which could save a life, convict a criminal, prevent a terrorist attack or provide an alibi, should not be put out of reach of law enforcement based solely on which company it is that holds the information.

Amendment 154 deals with the retention of third-party data. As I am sure the noble Lord knows, this matter was considered in the Commons, where the Government gave a commitment to consider it further. I am grateful to the noble Lord and the noble Baroness for tabling this amendment and giving me an opportunity to update the Committee on those considerations. My right honourable friend the Home Secretary has given a clear commitment that we will not require a telecommunications operator to retain third-party data, and that commitment is given effect to in the Communications Data Draft Code of Practice. However, distilling that commitment into primary legislative drafting is complex. We do not want to include provisions in the Bill that are not entirely clear in scope or which put in place restrictions that are broader, or indeed narrower, than intended. But we have been making good progress and are close to a provision that we think achieves the desired outcome. Of course, we need to test that drafting with operational stakeholders and with those telecommunications operators likely to be affected by the legislation, but we hope to be able to return to this issue on Report.

Finally, on Amendment 235, the principle of what are communications data is clear. Changing that position so that the classification of data changes depending on which provider holds them would no doubt cause confusion among providers as to how the data should be handled. While I understand the concerns around third-party data, and hope that what I have said today lays some of those to rest, amending the definition of communications data is not the right way forward. I invite the noble Lord to withdraw Amendment 116.