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.