Investigatory Powers Bill

Lord Rosser Excerpts

Monday 11th July 2016 Lords Chamber

Moved by

[Lord Rosser]

25A: After Clause 14, insert the following new Clause—
“General public reporting
(1) A person subject to a warrant or notice under Part 2, 3, 4, 5, 6, or 7 of this Act may publish and make publicly available a report including—(a) the number of warrants or notices to which they have been subject;(b) the number of accounts affected; and(c) the number of warrants or notices they have complied with.(2) A person may make the disclosure under subsection (1) in relation to any warrants or notices received in the previous 180 days.”

[Lord Rosser (Lab)]

The amendments in this group relate to issues which have been raised by service providers, and are all largely probing amendments to ascertain the Government’s response for the record. As has already been said, Clause 2 addresses “General duties in relation to privacy” for a public authority—including the relevant judicial authority—in connection with the issuing of warrants and notices, and sets out the considerations to which the public authority must have regard.

Amendment 25A, the first in the group, provides for a new clause after Clause 2, which would allow companies served with a warrant or notice, whether complied with or not, to publish figures in aggregate for warrants and notices received in the previous 180 days. The point of the amendment is to pursue the issue of transparency where there has been engagement between companies and law enforcement and government agencies under the provisions of the Bill. Such transparency would also appear to be a prerequisite for redress, should the way in which the powers in the Bill are being used be called into question.

In America, the USA Freedom Act significantly reforms the transparency of US surveillance laws, and this amendment is based on part of the provisions of that Act. There seems no reason why there should not be the facility for the level of transparency called for in this amendment, which would enable providers to publish statistical data about the number of warrants received and those given effect to. Not only does this amendment give the Government the opportunity to respond to the specific terms of the amendment but it will enable the Government to say what their intentions are for providing a clear framework for transparency under the Bill in the light of the USA Freedom Act.

The Minister made reference in an earlier debate to the letter that had been sent to my noble friend Lord Rooker in relation to the privacy clause. Towards the end of that letter, dealing with the last of the 10 tests to which reference was made in an earlier amendment, the letter said:

“The Bill also provides for the Secretary of State to designate international agreements under which cross-border requests for information can be made. This will ensure in the future that our protections and safeguards for requests for data under the legislation are capable of being harmonised with like-minded open and democratic Governments”.

The letter went on:

“As the Home Secretary made clear during the Bill’s passage in the House of Commons, we are seeking to negotiate a bilateral agreement with the US to this end”.

It would be quite helpful if the Minister was able to say in response what is the likelihood of the bilateral agreement with the United States of America being achieved, and within what kind of timespan.

I shall move on to the other amendments in the group. Amendments 63, 64 and 65 relate to Clauses 39 and 41. Clause 39, on “Implementation of warrants”, provides that the person who has obtained the warrant—that is, the head of the intercepting agency—may require other persons to assist in giving effect to a targeted interception warrant or mutual assistance warrant. Clause 39(4) provides:

“A copy of a warrant may be served under subsection (3) on a person outside the United Kingdom for the purpose of requiring the person to provide such assistance in the form of conduct outside the United Kingdom.”

Amendment 63 amends Clause 39 to exclude the extraterritorial provision in cases where any mutual assistance arrangement exists between the United Kingdom and the provider’s jurisdiction. It also serves to establish international mutual assistance agreements, of the kind recommended by Sir Nigel Sheinwald, the fast-departing Prime Minister’s special envoy on intelligence and law enforcement data sharing. It seeks to establish international mutual assistance agreements of the kind that he recommended—as currently under negotiation with the US Government—as the primary route by which UK agencies obtain data from overseas communication service providers. The amendment would continue to enable the imposition of warrants on communication service providers in non-mutual legal assistance countries.

Clause 41, on the “Duty of operators to assist with implementation”, provides that a telecommunications or postal service provider served with a target interception warrant or mutual assistance warrant is required to take steps to give effect to it. This obligation applies whether or not the operator is in the United Kingdom. Subsection (4) ensures that the steps a service provider is required to make must be “reasonably practicable”, and subsection (5) provides that, in considering what is reasonable,

“any requirements or restrictions under the laws of the country”,

in which an operator is based must be taken into account.

Amendments 64 and 65 would amend Clause 41 by seeking to establish a reasonableness test for overseas communication service providers. They would also establish international mutual assistance agreements, where they exist, as the primary route to obtain data from these communication service providers. The amendments would also give effect to the Government’s commitment that enforcement powers should not be applicable where an overseas communication service provider is acting under the auspices of an international agreement. The amendments to Clause 41 state that a relevant operator is not required to take any steps which it is not reasonably practicable for the relevant operator to take which, for a relevant operator outside the United Kingdom shall include,

“any steps which would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it has its principal office for the provision of telecommunication services”.

There is a fairly widely held view that the current international legal framework by which UK agencies obtain data from overseas providers needs updating. Sir Nigel Sheinwald recommended that the UK Government engage like-minded Governments to conclude new mutual assistance agreements, which address conflicts of law and provide a sustainable and workable approach for UK agencies to obtain content data from overseas providers. It appears some progress is being made with the US Government towards such an agreement. The Bill currently provides UK agencies with several options to seek data from overseas providers, including mutual legal assistance treaties, the mutual legal assistance convention, international agreements of the kind recommended by Sir Nigel Sheinwald, and service of a UK warrant extraterritorially.

The unilateral assertion of UK jurisdiction overseas risks creating a conflicting world of laws and a difficult and uncertain environment for local staff of overseas companies in the UK and UK companies abroad. The Bill does not direct agencies as to which power to use under what circumstances, and that is an issue that these amendments seek to address. The new international assistance agreements are additional and complementary to mutual legal assistance treaties but, unlike such treaties, international assistance agreements would permit UK agencies to request data directly from overseas providers, in their home jurisdiction, without application to a local court. These amendments do not seek to push all requests through the existing mutual assistance treaties process.

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I recognise that there is a careful balance to be struck between protecting sensitive information and the need for transparency regarding the use of investigatory powers, but I consider that this balance is achieved by the provisions set out in this Bill, including those relating to public reporting at Clause 55. The Government will continue to work closely and constructively with the telecommunications operators on this matter, including by consulting them on the content of the draft regulations, in order that we may provide for an approach that works for all concerned. For the reasons I have set out, I invite the noble Lord to withdraw the amendment.

[Lord Rosser]

I thank the Minister for that comprehensive reply. I will read it carefully in Hansard and reflect on what he had to say. I beg leave to withdraw the amendment.

Amendment 25A withdrawn.

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[Earl Howe]

I cannot do so and I am not sure that it is necessary for me to do so, because if, as I have explained, legitimate trade union activity is never sufficient grounds of itself for a warrant, the question of relevance does not arise.

[Lord Rosser]

Unless the noble Lord, Lord Pannick, has driven a coach and horses through these amendments—I shall have to consider carefully what he said—I would like to thank the Government for bringing them forward. As has been said, they incorporate in all the relevant parts of the Bill the change that was made in relation to trade union activity in providing protection for it when the matter was debated in the Commons. We welcome the amendments and the Government honouring the commitment that they gave in the other place.

Amendment 38 agreed.