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.