Investigatory Powers Bill

Lord Rosser Excerpts

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

[Lord Campbell of Pittenweem (LD)]

My Lords, I, too, have the misfortune to disagree with my noble friend Lord Paddick, although perhaps in not quite such trenchant terms as my noble friend Lord Carlile. I want to make two points.

First, the original proposal, now contained in this amendment, was made against a wholly different framework and its necessity must be considered against the background of the statutory framework which the Bill now encompasses. On that basis, the fact that the proposal may have been considered previously—by the way, I am much more favourably disposed to the coalition Government than the noble Lord, Lord Rooker—is no argument for its inclusion in the Bill now.

My second point draws not least on my experience as a member of the Intelligence and Security Committee and is about the attitude of the security services. Subsection (2) of the proposed new clause simply rehearses existing law and adds nothing to the obligations already incumbent on the security services.

[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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[Lord Mackay of Clashfern (Con)]

My Lords, it seems to me that the Government have a responsibility to implement the section in the Act that has been referred to. They have the power to commence that provision, and the reason for such delays is normally to make the necessary provision to enable it to be put into force. On this occasion, it looks as though there may be other reasons. I have to hope that those reasons do not include anything like succumbing to any particular influence that might be contrary to implementing what has been enacted—with the agreement, as the noble and learned Lord, Lord Wallace of Tankerness, pointed out from his personal experience, of all the political parties at the highest level at the time. I think it is the right thing to do for the Government to implement that provision. I am not at all sure that it is wise to enact some less effective provision in the hope that it will stir the Government up to enact the better one.

I sincerely hope that the new Secretary of State and the new Prime Minister will see the obligation that rests on them to carry out what had been undertaken by their predecessors. Indeed, the Prime Minister was a party to that agreement at the time as the Home Secretary of a Government who consented to the operation.

On the basis that the amendment is different from and less effective than the section in the enacted Bill, it is not particularly wise to put the amendment forward for enactment, but I hope that the new Secretary of State, having had a chance to consider the matter, and the Prime Minister, in her new role, will ensure that the agreement—so fully come to some years ago, after an amendment to another Bill had been passed in this House—will be honoured, and enact that moral obligation without further delay.

[Lord Rosser]

I will be brief, as the noble Baroness, Lady Hollins, and other noble Lords, including my noble friend Lord Prescott, have set out the case for and reasoning behind the wording of the amendment in very clear terms. Section 40 of the Crime and Courts Act 2013 was part of the cross-party agreement, which included the royal charter, which was signed by the then leaders of the Conservative, Labour and Liberal Democrat parties. As a result, amendments were withdrawn both in the Commons and in this House. Ministers subsequently continued to make explicit commitments in both Houses to bring in Section 40. They have, however, failed to honour that commitment, and have thus not implemented this part of the 2013 Act, in accordance with the wishes of both Houses and indeed, the previously declared intention of the Government. We will support the amendment if the noble Baroness, Lady Hollins, having heard the Government’s response, decides that she still needs to test the opinion of the House.

[Earl Howe]

My Lords, we discussed this issue in Committee when the noble Baroness tabled an amendment seeking to introduce a cause of action which would allow victims of unlawful interception to bring a civil claim. As she is aware, the Investigatory Powers Bill already contains a criminal offence where a person intercepts, without lawful authority, a communication in the course of its transmission via a public or private telecommunications system or a public postal system.

The cause of action, or tort, provided for in Clause 8, is intended to replicate the safeguard which existed in the Regulation of Investigatory Powers Act 2000. This focuses on circumstances where an individual’s communications are intercepted on a private telecommunications system by a person who has the right to control the operation or use of that private telecommunications system. This was a necessary safeguard to protect individuals in very limited circumstances where their employer may unfairly be intercepting communications on a company’s internal computer system, which is not within the scope of the offence of unlawful interception.

This provision was not intended to provide a route for anyone who believed their communications had been unlawfully intercepted to bring a civil case. As we have seen in recent times with the phone hacking cases brought by a number of individuals against media organisations, the appropriate civil routes of redress already exist, for example, for misuse of private information.

I fully understand that many noble Lords here, particularly those who have been victims of press abuse themselves, are frustrated as to what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report. I want to reassure noble Lords that that is not the case. The Government, as has been said, have implemented the vast majority of Leveson’s recommendations for reforming press regulation. Importantly, they have set up and are funding the Press Recognition Panel, which is currently considering an application for recognition from the self-regulator IMPRESS.

The exemplary damages provisions have been commenced in line with the date set out in the 2013 Act. However, it is important to make clear to the House that no specific date was set for the commencement of the Section 40 costs provisions. Notwithstanding that, the Government continue to look at this issue closely. Indeed, to better understand the issue, my right honourable friend the Secretary of State for Culture, Media and Sport and the Minister for Digital and Culture met Hacked Off and victims of press abuse as their first priority. DCMS officials met Hacked Off at official level again only last week. So this is something that the Government are actively considering. I suggest to the House that it is not unreasonable for Ministers who are new in post to take time to understand the issues at play. The position is that, for the time being, Section 40 remains under consideration.

We should also bear in mind that no recognised regulator is yet in place, although I realise that that could change on 25 October when the Press Regulation Panel rule on IMPRESS’s application. Regardless of the panel’s decision, it is true to say that the press landscape has undergone a huge amount of change over the last four years and the Government need to be sensitive to that. A crucial part of Section 40, for example, is around ensuring both sides have access to low-cost arbitration as an alternative to expensive litigation. The arbitration scheme run by IMPRESS is relatively new, while IPSO is currently trialling an arbitration scheme to better understand how it could work effectively. Given the importance of arbitration to making Section 40 operate effectively, it would also be useful to see how both IMPRESS’s arbitration scheme and IPSO’s arbitration pilot work in practice.

I return to the specifics of the amendments which the noble Baroness has tabled.

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[Lord Paddick]

My Lords, I have sympathy for the concerns held by the noble Baroness, Lady Jones, but bearing in mind the double lock that now applies in almost all warrant applications, which would not have applied when abuses of powers happened in the past, can the Minister reassure the House that the new provisions in the Bill for independent oversight of the granting of warrants may be sufficient to obviate the need for the amendments?

[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.

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Moved by

[Lord Rosser]

52: Clause 39, page 32, line 18, at end insert—
“( ) If a copy of a warrant served on a person outside the United Kingdom is within the scope of an international mutual assistance agreement, then—(a) the copy of the warrant must be endorsed with a statement that it is served pursuant to the agreement;(b) the intercepting authority must act in accordance with the agreement;(c) without prejudice to section 41(4), a telecommunications operator who takes reasonable steps to cooperate with the intercepting authority, pursuant to the agreement, shall be deemed to have fulfilled the duty imposed by section 41(1).”

[Lord Rosser]

This amendment is designed to ensure that where a warrant falls within the scope of an international agreement between the United Kingdom and a foreign Government, the requesting agency is bound to notify the receiving provider and follow the terms of the agreement, along with the authorisation, transparency and oversight requirements of the Bill, and thus establish such agreements as the primary route by which UK agencies request data from overseas operators where such agreements exist.

In its present form the Bill appears to provide UK agencies with several options to seek data from overseas providers. These include mutual legal assistance treaties, mutual legal assistance conventions, international agreements of the kind recommended by Sir Nigel Sheinwald in his report, and straightforward service of a UK warrant extraterritorially. The Bill does not direct agencies as to which power to use and under what circumstances.

What is being sought is a direction to agencies on the face of the Bill to prioritise international agreements where they exist so that they become the primary route by which UK agencies request data from overseas providers, and that this will make it more likely that these agreements will become models for other Governments. Achieving this should provide a more predictable approach for both agencies and providers and reduce the likelihood of a situation where a number of Governments claim jurisdiction over data. I beg to move.

[Lord Paddick]

My Lords, I have added my name to the amendment of the noble Lord, Lord Rosser, because we on these Benches entirely agree with it. There is a difficulty in the UK asserting unilateral power over other territories in terms of enforceability if nothing else. Clearly, if there is an international agreement, it is far better that that is used as the primary route to achieve the government agencies’ objectives than relying on a slightly dubious assertion of the UK’s power overseas. On that basis, we support the amendment.

[Earl Howe]

My Lords, I am grateful to both the noble Lord, Lord Rosser, and the noble Lord, Lord Paddick, for the way they introduced this amendment. Of course, its context, as the House will be aware, is the position of this country vis-à-vis the United States. I welcome the opportunity to respond to the amendment because it provides me with a chance to update the House on the progress of the proposed bilateral agreement between the United Kingdom and the United States on the issue of access to data across jurisdictions.

The UK and United States Governments have been considering a framework under which communications service providers based in one country could disclose data directly to the other for serious criminal and counterterrorism investigations when required to by a valid warrant or order, without facing a conflict of law. We need to address the situation—highlighted by Sir Nigel Sheinwald, David Anderson, and indeed some US-based companies themselves—where the content of communications between UK nationals, in the UK or in third countries, who are planning or committing crime in the UK, or others who pose a direct threat to the UK both here and abroad, can be beyond the reach of UK law enforcement simply because the data that relate to their communications happens to be stored in the United States.

I am pleased to say that in July 2016 the US Government sent a legislative proposal to Congress that, if passed, would pave the way for a bilateral agreement between the UK and US Governments. The legislation and agreement would help ensure that US-based communications service providers were able to respond to lawful orders from the UK by removing any perceived conflict of law that may previously have prevented co-operation. It would include strong safeguards and so maintain rigorous privacy protections while providing a means for UK agencies to make targeted requests for data relating to serious criminality. This type of agreement would be good for business, which requires greater certainty in the face of any conflict of laws; good for the public, because it would increase levels of transparency and oversight, while also ensuring that they are protected from key threats; and good for the internet, because it would avoid the challenges posed by data localisation and the balkanisation of the web.

We hope that such an agreement can be in place as soon as possible. However, any timetable will of course depend on the changes required to the relevant US legislation. We hope that these can be agreed quickly. Clearly, it would not be right to specify something that does not yet exist as a primary route in the Bill. However, I can reassure the House that, in practice, of course the intention is that such an agreement between the United Kingdom and the United States would be the primary route through which UK agencies access data from US-based communications service providers where it is within the scope of the agreement.

We have always sought to work with companies so that they are able to meet their obligations under UK law. This agreement will help to facilitate exactly that co-operation—so the amendment is not necessary. It is worth repeating what the Prime Minister said in March when she was Home Secretary: any company co-operating with its obligations through an international agreement will of course not be subject to enforcement action through the courts. I hope that these remarks are helpful, and for the reasons given I invite the noble Lord to withdraw the amendment.

[Lord Rosser]

I thank the Minister for his reply and for the update on the discussions that are taking place towards an agreement that I hope will resolve some of the current difficulties. I am quite sure that the Minister’s words and the information he has given will be read with interest, not only within this House but outside it. I thank him for his reply and beg leave to withdraw the amendment.

Amendment 52 withdrawn.

Investigatory Powers Bill

Lord Rosser Excerpts

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

[Lord Rosser (Lab)]

This amendment relates to Clause 58, which some people, although not the noble Baroness, Lady Jones, have referred to in the context of a recent opinion by the ECJ Advocate-General in the case involving Tom Watson MP. We do not support the amendment but I want to make it clear that the fact that we are opposed to it does not mean that we have decided that the clause as it stands meets the opinion of the ECJ Advocate-General in the case now before the European Court of Justice involving Tom Watson MP and relating to retaining and accessing communications data, should that opinion be reflected in the judgment of the court when it is delivered. I want to make that statement as there may be those who, for some reason or another, have come to the conclusion that the fact that we have not tabled any amendments to Clause 58 means that we believe that the clause will cover the position of the Tom Watson case if the judgment of the court proves in line with that of the opinion of the ECJ Advocate-General.

[Lord Beith (LD)]

My Lords, I applaud any attempt to make the definitions precise but there comes a point when there is a negative consequence. I am slightly worried that the wording of the amendment—certainly as drafted—could inhibit the activities of law enforcement in establishing a pattern in the development of criminal behaviour and activity, particularly in the area of organised crime, if it were to be interpreted as strictly as its wording invites. Although the intention of the amendment is good, I am not yet persuaded that it can safely be included without an undesirable inhibition of a particularly important area of activity at the moment—namely, establishing whether groups with well-suspected criminal intent might be planning something worse.

[Earl Howe]

My Lords, I listened carefully to the noble Baroness, Lady Jones of Moulsecoomb, and I am grateful for the case she has put. However, I cannot agree with it, and I will explain why that is.

As the noble Baroness explained, this amendment seeks to provide that certain communications data authorisations can be approved only where there is a reasonable suspicion that a serious criminal offence has been, or is likely to be, committed. In short, the amendment would undermine the ability of law enforcement and other public authorities to catch criminals and to keep the public safe. I will now set out why I believe that is so.

I shall start with the requirement for reasonable suspicion. As we discussed and agreed in this House last week, the necessity and proportionality test is established and well understood. It is difficult, therefore, to see what benefit would be derived from inserting a different test. Indeed, in order to approve an authorisation for communications data for the purpose of preventing or detecting crime, a sufficiently compelling case will always be required—a speculative authorisation would never be approved. Therefore, I suggest that the amendment responds to a concern that is fundamentally misplaced.

Turning to the serious crime threshold that this amendment would insert, assuming that the noble Baroness intends the threshold to be equal to that currently used to authorise the interception of communications, I believe once again that the amendment is inappropriate and damaging. Taking effective action against serious criminals often requires the investigation of, if I may use the phrase, lower-level individuals for activities that are not considered serious crimes in order to build a case against higher-ranked criminals. It may also include the investigation of minor offences where stopping an offender at this point may prevent an escalation of their criminal activities, such as in stalking and grooming cases.

It might be helpful if I expand on that. Placing this additional restriction on the acquisition of communications data would disrupt police investigations of online grooming and linked crimes, such as the sending of sexual communications to a child. This is because where such activity does not meet the high threshold proposed, which will often be the case if the child is over the age of 13, it may be impossible to identify perpetrators who may go on to be involved in child sexual exploitation. As such activities increasingly take place online, law enforcement agencies will rely heavily on communications data and the new power in relation to internet connection records in order to investigate this.

The amendment would also reduce the ability to investigate online fraud, which affects everyday internet users who shop or bank online, but which could, depending on the value of the fraud, fall below the serious crime threshold proposed here. Equally, the Department for Work and Pensions, for instance, investigates false tax credit claims which can result in the collective overpayment of millions of pounds of taxpayers’ money, but these false claims may not individually reach the threshold of serious crime. Communications data are currently used to investigate such activity.

I also believe that these amendments are unnecessary given the strict safeguards that already apply to the use of communications data. Data can be accessed only on a case-by-case basis and only where judged necessary and proportionate by a senior officer of a rank specified by Parliament and who is independent of the investigation. Strong judicial oversight will also be provided by the Investigatory Powers Commissioner.

I was grateful to the noble Lord, Lord Rosser, for qualifying his party’s position on this part of the Bill. We maintain that our existing regime and the proposals in the Investigatory Powers Bill are compliant with EU law, but whatever the final judgment, given the importance of communications data to preventing and detecting crime and safeguarding national security, we will ensure that plans are in place so that the police and others can continue to acquire such data in a way that is consistent with our obligation. I hope that that is helpful.

[Lord Rosser]

The Minister appears to be saying that the Government’s position is the same as ours, and that you cannot express a view on whether the law as it stands, as reflected in the Bill, meets the judgment of the European Court of Justice until we have seen and read what that judgment is.

[Earl Howe]

Indeed, but until we have seen and read what that judgment is, our view is that the Bill is compliant.

In view of the very significant impact that would flow from this amendment, I invite the noble Baroness to withdraw it.

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Moved by

[Lord Rosser]

100B: Clause 59, page 49, line 23, leave out “6” and insert “12”

[Lord Rosser]

My Lords, when the Bill was going through the House of Commons, the Government made a commitment to introduce a clear and appropriate threshold for accessing internet connection records. The concern was that access should not be available in connection with non-serious crime. The threshold for serious crime that the Government came up with in Committee appeared workable and appropriate.

But last April, the then Home Secretary told the then shadow Home Secretary that restricting internet connection records to serious crime would hamper the ability of the police to investigate online stalking and harassment; disrupt police investigations of online grooming or the sending of sexual communications to a child; reduce the ability to investigate online fraud; hinder the ability to identify and disrupt the sale and distribution of illegal material online, including illegal weapons, counterfeit medicines or illegal drugs; and prevent the police progressing investigations where there may be a threat to life but where it is unclear whether a crime is involved—for example, locating a missing or suicidal child—because many of these activities would not meet the serious crime threshold.

While we welcome the fact that specific offences such as stalking and harassment have been addressed and can lead to access to internet connection records, we have continuing concerns around the definition of “other relevant crime”, which is too broad and could still lead to the use of internet connection records in relation to crimes that would not be regarded as serious.

Currently the Bill defines “other relevant crime”, with some caveats, as,

“an offence for which an individual … is capable of being sentenced to imprisonment for a term of 6 months or more”.

The Government have recently stated that this threshold rules out the use of internet connection records for a large number of minor crimes, including those which are not subject to a custodial sentence and those which are subject to only a one-month or a three-month custodial sentence. The Government have also indicated a number of offences in respect of which the use of internet connection records would be excluded if the threshold in respect of “other relevant crime” was increased from six months to a sentence that is capable of attracting a custodial sentence of 12 months or more. Those offences which would then be excluded include motoring offences such as joyriding, driving while disqualified and failure to stop or report an accident; an offence of criminal damage under £5,000; some sections of the Public Order Act which do not amount to violence; and certain immigration offences and some offences relating to the supply of intoxicating substances or controlled drugs.

Our amendment would increase the qualifying term of imprisonment from six months to 12 months or more. This would exclude the kind of offences to which the Government have referred. One accepts that such offences can have significant consequences, but we do not regard them as serious in the context of the purpose for which access to internet connection records is required—and nor do we think that raising the threshold to 12 months’ imprisonment in respect of other relevant offences makes it difficult to pursue matters related to the kind of offences to which the previous Home Secretary drew attention and to which I referred earlier.

I hope that the Government will feel able to give a helpful response to this amendment, which seeks to address concerns that access to internet connection records could be used in inappropriate circumstances for which the Bill is not intended—notwithstanding the fact that any such access to internet connection records must meet the necessity and proportionality requirement, which some might argue should exclude much low-level offending. I beg to move.

[Baroness Hamwee]

The noble Lord made a very persuasive case for this amendment and I do not think that he will be surprised to be supported by these Benches, given our concerns about internet connection records—so any further constraint on them is something that we would welcome. But he went into far more detail than that and we support him.

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[Lord Oates (LD)]

My Lords, I support Amendments 100C, 100D and 100E. I am not at all naive about the threats that are faced by this country and the need to provide the tools to the security forces to deal with them. However, as the Independent Reviewer of Terrorism Legislation has made clear, the fact that powers might be useful is not in itself a justification for granting such powers; they must be proportionate, properly scrutinised and properly constrained. I agree with my noble friend Lord Paddick that the phrase “request filter” has a benign ring to it that is perhaps lulling some of us into a false understanding of what it is really about.

As my noble friend recalled, when we discussed this matter previously, the noble and learned Lord, Lord Keen, disputed the idea that the request filter would create a virtual database. He seemed to suggest that it cannot be described as a database simply on the grounds that the data will not be held by the Government. The data accessed by the request filter will be held by commercial entities, not by the Government, that is true, but it will be held on the instruction of the Government in the form that the Government determine, and it will be accessible by agencies of the Government by a means that the Government will determine. I make no claim to be an etymologist, but that seems to me pretty much the definition of a virtual database.

The House may wonder why the Government are going to such an effort to make this distinction between a database and a request filter, when it seems self-evident that they are effectively one and the same. The reason is simple: because they do not want people to realise that they are in the process of legislating into existence the power to create a vast virtual database of information on every person in this country.

As my noble friend mentioned, the Joint Committee on the draft Communications Data Bill stated at paragraph 113 of its report, which dealt with the request filter:

“The difference is that instead of one database there are many and they are privately owned. Although they are privately owned the Government can stipulate what should be held on them, for how long, and in what format it should be supplied. The differences therefore are not as great as the Home Office suggests”.

As my noble friend said, it concluded that,

“the Request Filter can be equated to a federated database”—

a database which will be accessible not only to the security services in the tireless work that they do on our behalf to keep us safe from terrorism, law enforcement authorities in their vital work tackling serious crime, or the police in dealing with crime in general. As my noble friends have said and the Government have confirmed, this vast, federated database will be available to all public authorities to assist in obtaining the communications data that they are permitted to use, subject to individual authorisation.

I do not think that the public have any idea of the sweeping powers that we are contemplating granting to the Secretary of State to establish this vast virtual database. I imagine that they will be horrified when they do, just as they were by proposals of previous Governments to create national databases, before this Government cleverly came up with a new name for it that sounds so eminently and hypnotically reasonable, but is as far from describing what it actually is as it is possible to conceive.

I hope that this House will not allow itself to be misled by the Government’s creative use of the English language, but, rather, aware of the practical reality of what is being proposed, will support the amendments in the names of my noble friends.

[Lord Rosser]

My Lords, we do not share the major concerns expressed in support of the amendment, in view of the Bill’s provisions. As I understand it, neither did the committees which considered the Bill, including the Joint Scrutiny Committee on the draft Bill. There are also downsides which would arise from the amendment, to which reference has already been made.

In Committee, we asked the Government to clarify that the general provisions in relation to privacy in Clause 2 affected every power in the Bill, in the light of the letter written by the noble Earl, Lord Howe, to me on 14 July stating that the new overarching privacy clause set out the privacy obligations which constrain the use of the powers in the Bill—which therefore must include necessity, proportionality and the protection of privacy. In their response, the Government confirmed that that was the case. For those reasons, we will oppose the amendment.

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[Baroness Jones of Moulsecoomb]

My Lords, I did not intend to speak on this amendment, which I strongly support, so I will be brief. Even I understand the need to balance civil liberties and national security, but comparing this with stopping a few cars simply does not hold water and is not a comparison that we can make—and, personally, I am totally in favour of stopping cars, so that is not an issue.

It is almost as if the Government went to the intelligence and security services and said, “What do you want? What can you imagine wanting to keep us safe?”, and they came up with a huge list. It is like asking children what they want for Christmas: they want a huge list of things and it is not always good to give them everything they want. In this instance, it is certainly not good to give the intelligence services what they want. Indeed, they do not even want some of what the Government are offering them, so the Government have actually gone one step further and offered them more, which to me is totally counterintuitive.

There is also the issue of practicality. When you have this much information coming through, it is incredibly difficult to pick out the vital points and the important things. This could be counterproductive and make us less safe as a nation than we are already. I feel very strongly about this amendment and deeply regret that there is not more support in the House.

[Lord Rosser]

The effect of this amendment, as has been said, would be to leave out internet connection records from the definition of “relevant communications data” in Clause 84, which covers powers to require the retention of certain data. The Bill has had extensive pre-legislative scrutiny, including by a Joint Committee of both Houses, and we supported it at Third Reading in the Commons subject to, among other things, amendments being made which addressed the issue of access to internet connection records not being used in relation to minor crimes. Our amendment on the definition of “other relevant crime”, which raised the threshold from six months to 12 months, has been accepted by the Government. We will be opposing an amendment that now appears to weaken the effectiveness of the provisions relating to internet connection records, at least under Part 4 of the Bill, specifically Clause 84.

[Lord Keen of Elie]

My Lords, the amendment would prevent the Government being able to require telecommunications operators to retain internet connection records. The noble Lord, Lord Paddick, tabled exactly the same amendment in Committee, and he will not be surprised to know that the Government still cannot support such an amendment. As the noble Lord, Lord Harris of Haringey, and the noble Baroness, Lady Harding, observed, these provisions may not give rise to a perfect system of record recovery but it is preferable to a dark hall where criminals move unseen and with impunity.

The noble Lord, Lord Paddick, talks of observations from the Security Service and the Secret Intelligence Service, but be it noted that it is not for them that these records are so essential; it is for the police forces and the enforcement agencies in respect of crime. I have spoken at length to the National Crime Agency, which has underlined to me the critical nature of these records now that telecommunications data are so often routed through the internet, not by means of normal telephony.

Earlier today this House recognised the importance of the use of internet connection records, subject to strict safeguards, as noted by the noble Lord, Lord Rosser. I do not think this House will want to prevent internet connection records being retained with the result that they are not available for any form of criminal investigation. Indeed, we have just discussed the government amendment to require judicial approval before a data retention notice can be given, which, as I said at the time, puts in place a significant new safeguard before a telecommunications operator can be required to retain the data.

There has been considerable debate on this topic, not just today but as the Bill has progressed through Parliament. However, in relation to this amendment, I should perhaps reiterate why internet connection records are so essential for law enforcement. As communications increasingly take place via the internet, information that used to be routinely available to law enforcement from telephone-based communications data is increasingly unavailable—for example, the identity of an individual suspected of sharing indecent images, or people with whom a missing person was last in contact. Internet connection records are essential because they will ensure that the type of communications data that were previously available to law enforcement will remain available in future, not perfectly but generally. It will help to ensure that terrorists and criminals cannot evade detection simply because they choose to communicate online.

The noble Lord, Lord Paddick, observed that there may be applications or social media apps on a device that maintain a persistent connection to a service. That is true, but even in such cases the relevant ICR will signpost the service access by the device, enabling a public authority to make further inquiries with the service provider, which is identified through the ICR. ICRs will allow law enforcement to approach online service providers to acquire communications data where it is known that a specific device has accessed their service. So it is not the case that simply because you have open or permanent connections, the use of ICRs is rendered useless; that is simply not accepted.

The alternatives available to the security and intelligence services are not available to the police, and certainly cannot be adduced in a court of law. The police can acquire communications data only on a case-by-case basis where necessary and proportionate, and where they have made strong operational cases as to why they need to retain these records. Equally, the intelligence agencies may acquire data only for their own statutory purposes, which are far narrower than the criminal types investigated by the police. It is also the case, as I mentioned before, that intercept material from the agencies may not be used as evidence in court, a position that has been upheld by numerous independent inquiries over the years, most recently by a panel of the Privy Council in 2014.

Giving evidence to the Public Bill Committee, the noble Lord, Lord Reid, and Charles Clarke, previous Home Secretaries, were asked whether ICRs were a key part of updating legislation to the current world, and they both definitely agreed. Indeed, one could go further. The noble Lord, Lord Paddick, alluded to the observations of the Joint Committee on the draft Bill. Let us look at its conclusion:

“on balance, there is a case for Internet Connection Records as an important tool for law enforcement”.

The Government recognise the sensitive nature of internet connection records, which is exactly why we had our earlier debate concerning the safeguards that must surround their recovery. The point has already been made that those records will not give access to the content, it is the record of connection that will be recovered.

I appreciate that the noble Lord, Lord Paddick, still has concerns about internet connection records, and I fear that nothing I say will convince him otherwise, but I again reassure him that we have all the right safeguards in place. Data can be retained only when necessary and proportionate and following authorisation and approval by the Secretary of State and a judicial commissioner. We have mechanisms in place to ensure that data are held securely, including audit by the Information Commissioner. Once the data are retained, they can be accessed only on a case-by-case basis, and only when judged necessary and proportionate by a senior officer at a rank specified by Parliament who is independent of any investigation being carried out. Strong judicial oversight will be provided by the Investigatory Powers Commissioner and, thanks to the changes made by this House, internet connection records cannot be acquired for minor offences, an amendment we discussed earlier.

In summary, internet connection records are a vital power. As to their cost, I believe that the figure given at a previous stage was £174 million over a period of 10 years. That is a not inconsiderable sum, but a manageable figure in the context of what we face with police powers. Accordingly, I invite the noble Lord to withdraw the amendment.

Investigatory Powers Bill

Lord Rosser Excerpts

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

[Earl Howe]

My Lords, I will speak to Amendment 132 and the others in the group. The government amendments in this group address the fact that the Northern Ireland Assembly has not provided legislative consent for this Bill. Only a small number of provisions in the Bill engage devolved responsibilities in Northern Ireland. These relate to oversight and to the proposal that the role of the Investigatory Powers Commissioner for Northern Ireland, who is responsible for overseeing the exercise of devolved powers, should be subsumed into the Investigatory Powers Commissioner that we are creating under the Bill.

In the absence of legislative consent, the existing office of the Investigatory Powers Commissioner for Northern Ireland will not be abolished. Consequently, the Bill need no longer provide for the First Minister and Deputy First Minister to be consulted on the appointment of the IPC. Similarly, the Prime Minister will no longer be under a statutory duty to send them a copy of the Investigatory Powers Commissioner’s annual report.

Additionally, appeals arising from the Investigatory Powers Tribunal under Clause 220 will no longer be heard by the Court of Appeal in Northern Ireland. It will be for the Investigatory Powers Tribunal to decide whether the Court of Appeal in England and Wales or the Court of Session in Scotland should hear the appeal instead. Although this is obviously not the most desirable appeal route for individuals from Northern Ireland, our hands are tied by lack of legislative consent from the Northern Ireland Executive.

Included in this group of government amendments are regulation-making powers allowing the Secretary of State, with the consent of the Northern Ireland Assembly, to reverse these amendments. Therefore, if legislative consent were given at some point in the future, the IPC could reasonably quickly take on the functions of the Investigatory Powers Commissioner for Northern Ireland and appeals could be allowed to go to the Court of Appeal in Northern Ireland. It is our hope that both these powers can be used in the near future. Accordingly, I hope noble Lords will support these amendments. I beg to move.

[Lord Rosser (Lab)]

My Lords, I want to make reference to the amendment that we have in this group. Clause 205 provides for the appointment of the Investigatory Powers Commissioner and judicial commissioners.

As currently drafted, Clause 205(5) requires the Prime Minister to consult Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland about the appointment of these commissioners. However, there appears to be currently no duty to consult Welsh Ministers about these appointments, with the result that Wales does not feel that it is being treated equally with the other devolved Administrations in this respect.

Under the Wales Bill before the House, Welsh devolution will take a constitutional form that is much closer to that for Scotland and Northern Ireland. The First Minister of Wales considers that the mutual respect between Administrations means that drawing unnecessary distinctions in legislation between devolved Administrations should be avoided unless strictly necessary. He regards the provision in this Bill—the Investigatory Powers Bill—as at the very least constitutionally discourteous to Wales. In speaking to this amendment, I invite the Government to take the necessary steps in relation to consultation under Clause 205 to address the concern raised by the First Minister on which I have just sought to reflect.

[Lord Murphy of Torfaen (Lab)]

My Lords, I add my voice to what my noble friend just said. Initially, in the list of government amendments the Minister seemed to be saying that it was no longer a requirement for the First Minister and Deputy First Minister in Northern Ireland to be consulted on the appointments of the IPC and the judicial commissioners. That is a retrograde step and I hope that the Government will rethink it. I will explain why in relation to my noble friend’s amendment with regard to the First Minister of Wales.

When the Joint Committee considered this part of the Bill, it added its own recommendations that when the Prime Minister looked at the appointment of the IPC and the judicial commissioners, he or she should consult the First Minister of Scotland and the First and Deputy First Ministers in Northern Ireland. Both jurisdictions of course are different from England, particularly in Scotland, and it seemed the right thing to do. There was unanimity among members of the Joint Committee on making that recommendation.

Since the Joint Committee met, as my noble friend said, a new Bill has been introduced to this House, the Wales Bill, that will considerably alter the constitutional relationship between Wales and the United Kingdom. For example, it will confer reserve powers on the Welsh Assembly, much of criminal law will be devolved, Wales will be a distinct jurisdiction and there is the possibility in years to come that even justice might be devolved to the Welsh Assembly. It is not at the moment, but certainly the Assembly is arguing that there may be a case in the future for that to happen.

This afternoon, I met with the First Minister for Wales on this very issue. As my noble friend said, the Welsh Government and the Welsh Assembly are very concerned that Wales should be part of the consultation process. No one is arguing that the First Minister of Wales, the First and Deputy First Ministers in Northern Ireland or the First Minister of Scotland should make the appointments: it is a question of courteous consultation. I speak as a former Welsh and Northern Ireland Secretary in saying that devolution has matured over the last dozen years. It is important to respect that maturity and respect the constitutional relationships. On a simple matter of consultation, the Government should rethink the position of the First and Deputy First Ministers of Northern Ireland in this respect and should add the Welsh First Minister as a consultee in this important process. I support the amendment spoken to by my noble friend.

[Earl Howe]

My Lords, the Investigatory Powers Commissioner will be taking on the responsibilities of the three existing statutory commissioners in this area. I contend that Amendment 132A is unnecessary and indeed inappropriate because it would create an inconsistency across the Bill.

The appointment of commissioners to one of those existing bodies—the Office of Surveillance Commissioners —is currently a matter for the Prime Minister, following consultation with Scottish Ministers. Scottish Ministers also have the power to appoint surveillance commissioners for the purpose of overseeing the exercise of powers under the Regulation of Investigatory Powers (Scotland) Act 2000, or RIPSA.

Under the Bill, the IPC will take on responsibility for overseeing the exercise of powers under RIPSA. As a consequence, the Bill will remove the power of Scottish Ministers to appoint surveillance commissioners. To be consistent with the current position, the Bill therefore requires that Scottish Ministers must be consulted by the Prime Minister prior to the appointment of the IPC or a judicial commissioner. Similarly, the Bill currently requires the Prime Minister to consult the First Minister and Deputy First Minister of Northern Ireland on the appointment of a commissioner. This again reflects the fact that Northern Irish Ministers currently have a role in the appointment of the Investigatory Powers Commissioner for Northern Ireland, which the Bill had originally proposed to subsume into the office of the IPC.

In the event, as I have just said, the Bill has not received legislative consent from the Northern Ireland Assembly. Consequently, the amendments that I have already spoken to in this group would remove the requirement for consultation with Northern Irish Ministers. The noble Lord, Lord Murphy, said that that was a retrograde step, but without legislative consent for the Bill from the Northern Ireland Assembly, the Government have no alternative. In contrast, Welsh Ministers currently have no statutory role in the appointment of the existing commissioners. As the Bill will not affect the competence of Welsh Ministers, I do not consider it necessary to introduce a new right of consultation. Indeed, doing so would create an inconsistency between the treatment of Welsh Ministers and their counterparts in Northern Ireland.

The appointment of judicial commissioners is an important matter, which is why the Government have strengthened the Bill by requiring that appointments must be on the recommendation of the Lord Chief Justice of England and Wales, and that of his devolved counterparts. So Welsh interests will undoubtedly be represented by the Lord Chief Justice of England and Wales. Indeed, I note that the current Lord Chief Justice was in fact born in Wales. I do not consider that further changes to this process are necessary, particularly when they would serve to create inconsistencies within the Bill, as I have explained. On that basis, I hope that the noble Lord will agree not to press his amendment.

[Lord Rosser]

I thank the Minister for his response. The spirit of the amendment, frankly, is that in the light of the thrust of the Wales Bill the Government ought to be prepared to consider making the change sought in the amendment, which after all is about consultation. However, I note the response that has been received, which clearly indicates that the Government are not prepared to go down that road. I am sure that the First Minister will read the Government’s response carefully even though it will probably be without any enthusiasm.

Amendment 132 agreed.

--- Later in debate ---

[Baroness Hamwee]

My Lords, my noble friend Lord Paddick and I also have Amendments 178A, 178B and 178C in this group.

We mentioned in Committee how inextricably intertwined are technical and legal matters in this area. I doubt that either Minister would disagree with that, having lived with this Bill as they have. Whether and how the Act will apply will be a matter of legal interpretation in the context of the technology that we have at the time. Our Amendment 134A would give the Investigatory Powers Commissioner power to publish material regarding legal interpretations. It is clear that he would keep the interpretations under review, so this amendment is simply a matter of having the power to publish them.

We welcome government Amendment 178 and its consequential amendments providing for a Technology Advisory Panel. We have three minor amendments seeking either clarification or adjustment. Subsection (1)(a) of the new clause provides for the panel to give advice on,

“the impact of changing technology on the exercise of investigatory powers”.

We would insert there a reference to the safeguards on the exercise of powers. That may be implicit, because the exercise of powers is to be subject to safeguards, but we think it should be explicit. After all, safeguards have been very much a feature of debate on the Bill in both Houses, and the Bill has changed quite a lot in spelling out what safeguards there are.

Similarly, Amendment 178B would insert advice on the interpretation of the law in the light of technological advances and necessary amendments to legislation. It is, if you like, a first cousin to Amendment 134A.

On Amendment 178C, given that the Investigatory Powers Commissioner and Ministers will be required to consider the privacy implications when exercising powers relating to new technology, it would be helpful for the Technology Advisory Panel to be required to have regard to those same matters—that is, those matters set out in the privacy clause, Clause 2. That would be not only helpful but appropriate. After all, as an advisory panel, it must have regard to how those exercising the powers would be constrained in exercising them. I beg to move.

[Lord Rosser]

I appreciate that I may be speaking prematurely since the Government have not moved their amendment on the Technology Advisory Panel. On the basis that they are not about to stand up and withdraw it, I thank the Government for the amendment establishing a Technology Advisory Panel, which reflects the recommendation by David Anderson QC in his report on the bulk powers provisions in the Bill, a report that we had secured during the passage of the Bill in the Commons and a recommendation on which we had an amendment in Committee in this House.

[Lord Keen of Elie]

I am obliged to the noble Lord, Lord Rosser, and will resist the temptation that he laid in my path. As he observed, the government amendments have been tabled to give effect to the recommendation of David Anderson’s bulk powers review.

The review demonstrated that the bulk powers are crucial. Mr Anderson’s report concludes that the powers,

“have a clear operational purpose”,

and,

“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”,

and that, where alternatives exist to their use,

“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or – crucially – slower”.

The review also concludes that bulk powers are vital across the full range of security and intelligence agency activity, including counterterrorism, cyberdefence, combating child sexual exploitation and organised crime, and supporting military operations; and that they have been used to disrupt terrorist activity, prevent bomb attacks, facilitate the rescue of hostages, thwart cyberattacks and save lives.

Mr Anderson’s report included a single recommendation, which was:

“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—

that is, the Investigatory Powers Commissioner—

“to advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability and development of techniques to use those powers while minimising interference with privacy”.

Following careful consideration of this recommendation, we agree with Mr Anderson’s assessment that those authorising, approving and overseeing the exercise of bulk powers must be alert to the impact of technological change on those powers’ utility and impact. These amendments therefore give effect to Mr Anderson’s recommendation in full.

The amendments provide that a Technology Advisory Panel must be established by the Investigatory Powers Commissioner and, in line with Mr Anderson’s recommendation, members of the panel would be appointed by, and clearly accountable to, the commissioner. They also provide that the role of the panel is to advise the Investigatory Powers Commissioner, the Secretary of State and Scottish Ministers on precisely those matters set out in David Anderson’s recommendation —namely, the impact of changing technology on the exercise of investigatory powers, and the availability and development of techniques to use such powers while minimising interference with privacy. The Investigatory Powers Commissioner would have the power to direct the panel to provide advice on any issue relevant to these matters.

While David Anderson’s review was in relation specifically to the bulk powers in the Bill, we agree with his view that there is no reason to restrict the scope of the Technology Advisory Panel just to those powers. Indeed, the panel giving advice in relation to the targeted powers could be just as valuable. As such, the amendments make clear that the panel’s role would extend to providing advice on all investigatory powers whose exercise is subject to review by the commissioner, which of course includes all the investigatory powers under the Bill.

To ensure that the panel would be able to undertake its role effectively, the amendments also make clear that its members would have the same right to access information as judicial commissioners. This means that any relevant person, such as any member of a public authority, must disclose or provide to a member of the panel all such documents and information as that member may require in order to carry out their functions.

We also agree with David Anderson that it should be mandatory for the Technology Advisory Panel to produce an annual report on the exercise of its functions. The amendments would therefore require that the panel make such a report to the Investigatory Powers Commissioner as soon as reasonably practicable at the end of each calendar year. At the same time as providing the report to the commissioner, a copy would also need to be sent to the Secretary of State and to Scottish Ministers where the report related to matters for which Scottish Ministers are responsible. To ensure sufficient transparency about the panel’s work, the amendments would require the Investigatory Powers Commissioner to include information about the work of the panel in their annual report.

I turn to the opposition amendments that have been tabled to the new clause establishing the Technology Advisory Panel. The first of these amendments would expand the role of the panel explicitly to provide advice to the commissioner on safeguards. While I appreciate what is intended by the amendment, I do not think it is necessary. The panel’s role is to advise on the impact of changing technology on the exercise of investigatory powers. Therefore, if technology changes in a way which means that existing safeguards are no longer appropriate or if new safeguards are needed to protect privacy, the panel can provide such advice to the commissioner and the Secretary of State. The panel must provide advice when asked to do so, but may also provide advice as it considers appropriate. While I appreciate the intent behind the amendment, I believe that the clause as drafted already provides for such advice to be given by the panel. Therefore, I do not believe that the noble Baroness’s amendment is necessary.

The second amendment to which she referred would expand the role of the panel to provide advice on an additional matter, namely,

“the impact of changing technology on the interpretation of the law and any amendments to legislation required to ensure the application of the provisions of this Act to changed technology”.

This amendment is neither necessary nor desirable. The role of the panel would, rightly, be squarely to provide advice on the impact of technology on the exercise of investigatory powers. This clearly defined role will ensure that members of the panel will be exactly what we need them to be: technical experts. David Anderson’s recommendation was designed to fill a gap. He was conscious that the Investigatory Powers Commissioner and judicial commissioners will be senior judicial figures. So, while they will be experts in the law and the interpretation of the law, they will not necessarily be experts in technology. What he felt was needed, and what the Government agree is needed, is technical experts to provide technical advice. In seeking to expand the panel’s remit to provide legal advice as well, I strongly fear we would end up with lawyers rather than technical experts. Indeed, David Anderson specifically warned that,

“the technological expertise of the TAP should not be unduly diluted”.

I pause to wonder whether one could ever dilute something with a lawyer, but I continue. That is exactly what this amendment would do, and that is why we firmly believe that it should be resisted.

This brings me to the amendment, which would permit the commissioner to make a report on his or her views about the legal operation of the Bill but would not place a duty on the commissioner to do so. I appreciate the sentiment behind the amendment, but I believe it is unnecessary. Clause 212 already gives the Investigatory Powers Commissioner a very wide remit to report on any matter relating to the functions of the judicial commissioners. That will, of course, permit the IPC, as he or she thinks fit, to report on the legal interpretation of the Bill. However, I hope that the IPC will not feel it necessary to do so, or at least to do so often. That is because the Bill serves to put beyond doubt the powers available to the state and the safeguards that apply to them. In the words of David Anderson, the Bill,

“restores the rule of law and sets an international benchmark for candour”,

but if the commissioner felt the need to report on the legal operation of the Bill, he could already do so.

Finally, Amendment 178C would require the panel to have regard to the same matters which a public authority must have regard to, as set out in Clause 2, which is referred to as the privacy clause. I appreciate the spirit of this amendment, but I believe it is unnecessary. Clause 2 is already clear that whenever exercising certain powers, such as to authorise warrants, all public authorities must have regard to the issues outlined in the privacy clause, but of course the Technology Advisory Panel will not be exercising such powers, so the amendment does not, in that context, make sense. If the intention is that when the panel gives advice it should bear in mind the various privacy considerations contained in Clause 2, then the amendment is also unnecessary, since the requirement, contained in government Amendment 178, that the panel advise on,

“the impact of changing technology on the exercise of investigatory powers”,

already includes advising on the ability to exercise those powers within the statutory framework and subject to all the safeguards contained in the privacy clause. Of course, the whole point of the Technology Advisory Panel, as specified in the government amendment, is to advise on techniques to “minimise interference with privacy”. So I really think that this amendment is unnecessary.

I invite the noble Baroness to withdraw the amendment.

Investigatory Powers Bill

Lord Rosser Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[Baroness Harding of Winscombe (Con)]

My Lords, I fear that we are repeating the debate we had the day before yesterday. If noble Lords look at this amendment, they will see three reasons why they could support it. One is if they feel that bulk data powers are unacceptable in any circumstances. A second is if they feel that the elaborate controls referred to by my noble friend Lord King and the noble Lord, Lord Carlile, are not good enough. The third is if they object in principle to the collection of internet connection records. From what I have heard this afternoon, the argument of the noble Lord, Lord Paddick, is entirely the third point. I respect his view on internet connection records but we debated this on Monday and the view of the House was very clear. I fear that we are simply repeating that discussion. We should move on.

[Lord Rosser (Lab)]

As the noble Lord, Lord Paddick, said, David Anderson QC commented in his report that neither the Bill nor the draft code of practice rules out the future use of the bulk acquisition power for internet connection records. Internet connection records are not currently acquired in bulk but existing legislation already permits the agencies to acquire such records in bulk, albeit there appears to be no present intention to do so.

The effect of this amendment would be to remove an existing legislative provision which could be needed in the future for bulk acquisition—bulk acquisition which David Anderson QC found had contributed significantly to the disruption of terrorist operations and, through that disruption, almost certainly to the saving of lives, and which had also been demonstrated to be crucial in a variety of fields. In addition, any such application in the future to obtain such data by the security and intelligence agencies would be covered by the relevant safeguards in the Bill, including in relation to necessity and proportionality in the interests of national security and the approval process.

This Bill is, among other things, about the appropriate balance between security and privacy. We clearly have a different view from that of some other noble Lords on where that appropriate balance lies. Our view is that, for the reasons I have sought to set out, we are unable to support this amendment and, if it is put to a vote, we shall oppose it.

[Lord Keen of Elie]

My Lords, this amendment would remove the ability for the intelligence agencies to acquire internet connection records in bulk, an issue we have already discussed in Committee and revisited on a number of occasions, as observed by my noble friend Lady Harding. At the time we debated this in Committee, I highlighted the point now made by the noble Lord, Lord Rosser, that this is not a new power introduced by the Bill. This is an existing power. It exists in legislation, albeit, while it is provided for, it is not at present utilised.

As I explained in Committee, it is vital in the current climate, when methods of electronic communication are changing and developing at an exponential rate, that we provide technology-neutral legislation—a point made by the noble Lord, Lord Rooker. We remain of the view that we would not wish to legislate against the possibility of internet connection records being acquired in bulk, should the agencies make a case—and they must make a case—which demonstrates that this might be necessary and proportionate in the interests of national security.

We strongly believe that it is right that the intelligence agencies have the power to acquire communications data in bulk, and David Anderson supported this in his bulk powers review. The noble Lords, Lord Carlile and Lord Campbell of Pittenweem, alluded to the observations made by David Anderson. I will refer to only one further quotation: he said that,

“bulk acquisition has contributed significantly to the disruption of terrorist operations and, though that disruption, almost certainly the saving of lives”.

The noble Lord, Lord Carlile, alluded to some of the examples that were given by David Anderson and worked through in his report.

--- Later in debate ---

[Lord Paddick]

My Lords, I shall also speak to Amendment 258B. The powers in the Bill are significant, as are the checks and auditing measures, but the Government accept, in providing for a review of the operation of the Act and in anticipating that a Select Committee of one or both Houses of Parliament will also want to look at the operation of the Act, that a full, independent review is both necessary and desirable. The Bill sets the initial period at five years and six months and requires the Secretary of State to prepare a report within six months of the initial period. These amendments would ensure that before any Government are held to account by the electorate at a general election, the electorate know what that Government have used the powers in the Bill for.

Amendment 258A adds to the requirement to produce a report within six months of the initial period that the report must be produced at least once during each Parliament. Amendment 258B reduces the initial period from five years and six months to two years and six months, to ensure that the actions of the present Government are clear to the electorate at the next general election, subject, obviously, to the current Government remaining in office for the full term. I beg to move.

[Lord Rosser]

There is obviously going to be a desire to know how the Act is operating and the Bill does provide for a report from the Secretary of State, but it is, let us just say, some time after the day on which the Bill becomes an Act. Assuming that the Government do not accept the amendment, I hope that in responding they will set out, or give some indication, of the bodies and committees which will look at how the Act is operating, including whether it is doing so in line with the terms of the Bill. In that, I include the codes of practice and, particularly in light of the last discussion we had, the statements on the record from the Government in the two Hansards during the passage of the Bill.

[Lord Murphy of Torfaen (Lab)]

My Lords, I shall add some points to what my noble friend has just said. During our rather long deliberations this evening and afternoon, I went to the Library to look up the definition of “draconian”. It seems to me to be very harsh, very severe. Apparently, it goes back to ancient Greece, where Draco was the statesman who decided that every single crime would be dealt with by a death sentence. It is not a good description of the Bill and the shadow Home Secretary is unfair and, I think, mischievous in what she said, because the Bill is significant, extremely serious and very difficult. It tries to balance the importance of security in our country, which was discussed at some length today, and our liberties.

I have to say that in 30 years in Parliament I do not think I have seen a Bill which has been scrutinised quite as well as this—not just by the Joint Committee that we were on in November and December but by other committees as well and, indeed, what we have seen in this House and the House of Commons. Nevertheless, the Joint Committee, at the very end of its deliberations, knowing full well that there would be an enormous amount of scrutiny, looked at what could happen in terms of review of the Bill. The Information Commissioner, indeed, gave evidence to the Joint Committee indicating that he thought there should be a sunset clause. The then Home Secretary, who has gone on to greater things, indicated that this was not appropriate, but the committee believed that parliamentary review of the operation of what will then be an Act should take place within six months after five years. That has been incorporated into the Bill and it is the most important type of scrutiny that could happen, because that would be a Joint Committee of both Houses of Parliament, one hopes, which could look at how the Bill has operated. The reason the Joint Committee said that was because of the hugely grave and serious nature of the Bill—not just because of the way it touches on the liberties of the subject, but protecting the subject as well.

Investigatory Powers Bill

Lord Rosser Excerpts

3rd reading (Hansard): House of Lords
Monday 31st October 2016 Lords Chamber

History tells us that we cannot rely on the press to regulate itself or on politicians who, as we know, are subject to manifold pressures from the press which they often find it difficult to stand up against. We need Section 40, and we need the amendment which the noble Baroness, Lady Hollins, has moved this afternoon in order to clarify what is being asked for.

[Lord Rosser (Lab)]

My Lords, when the amendments moved on Report by the noble Baroness, Lady Hollins, were discussed, the Government said that they did not believe that they would achieve the outcome she was seeking since the relevant clause dealt with the interception of private telecommunications systems, such as a company’s internal email or telephone system. The fact that the noble Baroness has been permitted the amendment before us at Third Reading suggests that it is accepted that it seeks to address the point made by the Government on Report; namely, that the amendments that were carried on Report do not achieve the outcome the noble Baroness is seeking.

I understand the Government oppose this amendment. Perhaps they will argue that this amendment also does not achieve the objective the noble Baroness is seeking. As the noble Lord, Lord Low of Dalston, reminded us, on Report the Government said that they fully understand that many noble Lords, particularly those who have been victims of press abuse, are frustrated about what they see as a lack of progress towards implementing the recommendations of the Leveson inquiry report, albeit that the Government went on to say that they did not accept that that frustration was justified.

I am not able to comment personally on whether this latest amendment, which was tabled at a very late stage, achieves its purpose or not. But I do know that the Government do not seem to have been particularly helpful so far in seeking to assist with what wording would achieve the purpose sought by the noble Baroness, Lady Hollins, and the other noble Lords who are signatories to the amendment concerned, bearing in mind these were amendments which, on Report, had the support of the House.

On Report, the Government accepted the commencement provision amendments, while making it clear that that did not mean that they had accepted, or would be accepting, the earlier amendment related to Leveson which had been passed by the House. Despite that earlier stance, the Government do not appear to have been willing to adopt the same approach to getting the wording right, in their view, for the amendment carried in this House on Report.

We will support this amendment if it is put to a vote. Therefore, if it is carried, the Government will have another opportunity, albeit in the Commons, to put forward wording which achieves the objective sought by the noble Baroness, Lady Hollins, and indeed up to now by this House in relation to this amendment and amendments already carried on Leveson-related issues, before the Commons makes a decision on whether to accept or reject the amendments passed by this House or to put forward an alternative amendment of its own.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, we discussed this issue in some detail on Report. As we previously made clear, the cause of action, or tort, provided for in Clause 8 is intended to replicate the safeguard in the Regulation of Investigatory Powers Act 2000. This focuses on circumstances where an individual’s communications are intercepted on a private telecommunications system by a person who has the right to control the operation or use of that system. This was a necessary safeguard to protect individuals, in very limited circumstances, where their employer may unfairly be intercepting communications on a company’s internal computer system, which is not within the scope of the offence of unlawful interception.

A number of noble Lords have spoken about the objective of the amendment. With great respect, the fundamental difficulty is that it really has nothing to do with the purpose or purposes of Clause 8. It is not, as the noble Lord, Lord Paddick, suggested, simply a case of deleting “private” and substituting “public” , or of seeking to amend the proposed amendment at this stage or to improve it—it simply has no place in the clause. Clause 8 was not intended to regulate the press or to deal with awarding costs in circumstances where such a case is brought against a publisher. It simply has no application in this context. I quite understand the concerns about Section 40 that have been expressed, and the question of commencements is understood and is under consideration. But to amend Clause 8 in this way is to ignore the very purpose of this part of the Bill.

The Bill already provides for a criminal offence where an individual has unlawfully intercepted communications. An individual convicted of such a crime is liable, on conviction on indictment, to imprisonment for a term of up to two years, a fine or indeed both. So anyone carrying out phone hacking would face, under this Bill, a criminal conviction. That is a significant penalty and, in our view, the appropriate penalty for such an offence.

As we made clear in the previous debate, there are already avenues for individuals to pursue civil claims against those who carry out unlawful interception such as phone hacking. For example, cases have been brought on the grounds of misuse of private information. Although I agree with the noble Baroness that the outcome of Leveson and press regulation are very important issues, I maintain that this Bill, and in particular Clause 8, is not the appropriate place to deal with them. I therefore invite the noble Baroness to withdraw her amendment.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I beg to move.

[Lord Rosser]

Let me take this opportunity to say that, while very differing views have been expressed in this House about the Bill, I believe it is accepted that it has benefited significantly from the attention it has been given through pre-legislative scrutiny and investigation, including by a Joint Committee, and during its passage through both Houses. We have now concluded our consideration of the Bill, and I want to take this opportunity to thank Ministers and the Bill team for the thought they have given to the issues that have been raised, including those left outstanding following the Bill’s passage through the Commons. Finally, I want to thank our own team, particularly Nicola Jayawickreme, for all the help and support they have given me and my noble friend Lady Hayter of Kentish Town.

Bill passed and returned to the Commons with amendments.

Investigatory Powers Bill

Lord Rosser Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 2nd November 2016 Lords Chamber

[Lord Rosser (Lab)]

The noble Baroness, Lady Hollins, has already reminded us of the cross-party agreement that committed the Government to implementing the recommendations of the Leveson inquiry. Unfortunately, the Government have not seen fit to commence Section 40 of the Crime and Courts Act 2013, even though, crucially, alongside the royal charter, Section 40 was designed to incentivise newspapers to join a recognised self-regulator. Yesterday the Government announced a public consultation on Section 40, despite the clear terms of the cross-party agreement.

There will of course be those who are suspicious of the Government’s reasons behind this consultation. Some may even feel that it is designed to give a cloak of respectability to a later decision to go back on the undertakings given and the cross-party agreement reached on Section 40. I do not intend to pursue that line. It is simply very odd for the Government now to commence consultation on whether in effect they should implement their own recent legislation, which was the subject of cross-party agreement, was passed by Parliament, and which still represents the will of Parliament. Is this to be a precedent and to become a feature, with the Government holding regular public consultations on whether they should implement legislation passed by Parliament? Where will it all end?

By the way, I do not share the view that there is not still time to resolve this matter and still ensure the very necessary and vital passage of the Bill within the required time limit. My party, with others, has played a major role in improving it considerably during its passage through Parliament. We will support the amendment moved by the noble Baroness, Lady Hollins, if it is put to a vote. There is no reason not to honour undertakings given and cross-party agreements reached on Section 40.

[Earl Howe]

My Lords, I first say to those who have supported the amendments in the name of the noble Baroness that I acknowledge the strength of feeling in the House on this emotive issue. As I said in my opening remarks, the Government know how important these matters are to everybody. We need a robust and workable system for media self-regulation, and resolving that is in everybody’s interest. However, I am afraid that I remain of the opinion that the Bill is not the means to achieve that. Of course I agree with the noble Lord, Lord Paddick, that the noble Baroness’s amendments are procedurally in order; that has never been in question. However, first, the scope of the Bill means it cannot do this subject justice. The amendments we are considering today concern only interception of communications and would not necessarily sit well with whatever broader solution is to follow. Secondly, and more importantly, the public consultation which the Secretary of State for Culture, Media and Sport announced yesterday provides a means for a reasoned, informed and considered public debate—

Investigatory Powers Bill

Lord Rosser Excerpts

Ping Pong (Lords Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Mackay of Clashfern (Con)]

I express my gratitude for the responsible attitude the noble Baroness has taken in this respect. I know how deeply she feels about the amendment she put forward. Of course, there is good journalism and less good journalism. I am glad to see the noble Lord, Lord Myners, in his place. It is possible to distinguish between what he was talking about and the feeling in respect of Section 40. I particularly want to emphasise the Minister’s words—that this is to be a genuine consultation; in other words, I take it that the Government have not yet made up their mind on this question and therefore, it will be worth while for anyone who has a point of view to express it. Even though the consultation period is slightly shorter than before, it is over Christmas and the New Year, which is perhaps the best time to generate good feelings.

[Lord Rosser (Lab)]

I congratulate the noble Baroness, Lady Hollins, on pressing this issue over a lengthy period with such determination and vigour. I ought to set out our position. There is inevitably a strong feeling that the Government are seeking a means to go back on the cross-party agreement, the undertakings given to victims and their commitment to implement Section 40 of the Crime and Courts Act 2013. In the Commons yesterday, the Solicitor-General rather gave the game away when he said that the consultation will ask whether Section 40 should be fully commenced, repealed or kept under review. Many fear that the consultation will prove to be a sham. Governments do not suddenly decide to hold a consultation on repealing recent legislation that has not yet been implemented unless that is something they would be happy to do. I suggest that the Minister knows that only too well. I suspect he may well choose to deny that, but the proof of the pudding will be in the outcome of this hastily organised consultation.

The question today is about the stance to take on the Government’s Motion. The noble Baroness, Lady Hollins, has indicated her position—at least, the Minister has done it for her—and it is one with which we agree. Two matters in particular need to be considered. One is the impact on the progress of the Bill. In our most recent discussion of this issue, the Government sought to argue that carrying the amendments concerned could place national security at risk, because it would delay the implementation of the Bill when there is a deadline, in a few weeks’ time, by which it needs to be passed. However, the Government destroyed their argument about a risk to national security by taking longer than they needed over scheduling consideration of our amendments in the Commons. If the Government seriously thought that national security was being put at risk, they would have had the Lords’ amendments considered by the Commons much sooner than they did. However, we are now that much closer to the deadline. Since we support the Bill we do not wish to start raising credible doubts over whether it will become an Act within the required timescale.

The second matter concerns the role of this House. This is usually described as inviting the Commons, the elected House, where deemed appropriate, to think again about aspects of or gaps in proposed legislation. We have done that twice in respect of the issue we are considering again today, and the Commons has twice declined to accept our view. This House has carried out its role and its responsibility.

In view of that, while we will continue to pursue this matter and the Government’s actions, like the noble Baroness, Lady Hollins, we do not believe that we should continue to do so through the medium of insisting on the amendments to the Bill that have previously been carried.

[Earl Howe]

My Lords, I am grateful for the contributions made from all quarters of the House. I will comment briefly on the consultation.

The consultation is a serious effort to canvas opinion. This is a difficult issue. There is no consensus around Section 40 implementation. We want to find a model for self-regulation that has broad support and works in practice. As well as having a responsibility to the victims, the Government have a responsibility to make sure that we have, as the noble Lord, Lord Myners, has correctly put it, a vibrant and sustainable press, particularly at the local level. We want to gather the evidence through a proper process, better to understand the potential impacts and explore options for next steps.

I and the Government believe that a consultation period of 10 weeks is appropriate and right. This is enough time to enable those who want to comment to do so, and we look forward to that process commencing.