Investigatory Powers Bill (Fifth sitting)

Lucy Frazer Excerpts

Committee Debate: 5th sitting: House of Commons
Thursday 14th April 2016 Public Bill Committees

[Keir Starmer]

The question for the Minister is, if that is the purpose, why is the measure not limited to thematic warrants? It is impossible to answer that question unless one wants to keep open the option of modifying non-thematic warrants. It is a simple amendment, that the provisions of a warrant issued under whatever the relevant clause is may be modified by an instrument. In subsection (1), we could achieve exactly what the Solicitor General says is the clause’s purpose by amending it to “themed warrants”, but it has not been done, notwithstanding the concerns of the Joint Committee.

[Lucy Frazer (South East Cambridgeshire) (Con)]

I wonder whether the hon. and learned Gentleman’s concerns are addressed by the last five words of subsection (2)(a):

“The only modifications that may be made under this section are adding, varying or removing the name or description of a person, organisation or set of premises to which the warrant relates”.

The Home Secretary, or someone else, will receive a warrant relating to a particular person, course of action or premises, and only if that warrant relates to those things could someone then be added—it must relate to the warrant itself.

[Keir Starmer]

I have considered that, and it is fair to say that subsection (2)(a) would not allow, in essence, a completely fresh warrant to be issued under the modification procedure. There has to be a relationship between the modification and the warrant, so someone could not say, “I want a warrant against X today, and I’ll modify it to include Y, which has nothing to do with X but it is handy to modify this warrant, as we have it before us.” There has to be a relationship, which I accept is the intention and the purpose of clause 30, but the drafting is still far too wide. What if an MP or a solicitor is involved? What if it becomes known that there is a gang and we think that X, Y and Z are involved—we do not know the others—and we then learn that one of them is talking to their solicitor? The solicitor is then related. A modification would allow something to be brought in, and there is nothing to prevent it.

With all due respect to everyone who has worked hard on clause 30, of all the clauses in the Bill it is the one that the further I went through it, the further my jaw dropped because of just how wide and unlimited it is. In an area such as this, where we are talking about safeguards, it is not enough simply to point to what are in fact limited words in the code of practice. I will not invite the Minister to do something now, but I am curious—I may have misunderstood—that paragraph 5.64 of the code says:

“Minor modifications that are made by the warrant requesting agency are valid for five working days following the date of issue unless the modification…is endorsed within that period by a senior official…on behalf of the Secretary of State. Where the modification is endorsed in this way, the modification expires upon the expiry date”.

I cannot find any reference to that anywhere in the Bill. If I am wrong, I will happily be corrected, but I do not know where that comes from. Obviously, my amendments would restructure the clause to try to make it workable, but I do not see paragraph 5.64 anywhere in the clause. It would help to have that clarified.

That brings me to the amendments, which I will address briefly. In the spirit of constructive dialogue, I have tried to propose a restructuring of the clause in a way that would narrow it while leaving a workable modification provision. My amendments are not intended to be unhelpful. Amendment 68 would leave out subsection 5(c) so that the modification for a major case sits with the Secretary of State. Amendment 69 would leave out subsections (6)(d) and (e) to cut out people below senior official level so far as minor modifications are concerned. Amendment 70 would leave out subsections (7) and (8) because they are not necessary. Amendment 71 would make it clear that, in relation to MPs and legal professional privilege, all modifications must go through a judicial commissioner—if a modification goes into a protected area, it would have to go through a judicial commissioner. Amendment 72 would leave out subsection (12) because it would no longer be relevant, as senior officials would be taken out of the equation. Amendment 74 would make it clear that certain modifications have to go through the judicial commissioner. I tabled those amendments as a serious attempt to improve clause 30, which is seriously deficient for all the reasons that I have outlined. For the Government to nod this through at this stage, without standing back and asking if they have got it right, would not be the right approach.

--- Later in debate ---

[Joanna Cherry]

I wish to speak about the service and implementation of warrants outside the UK. What I have to say applies equally to clauses 35 and 36. The genesis of my submission is not corporate concerns but strict legal principle. Violation of that principle would have important international political and commercial implications.

The Minister said a moment ago that everyone must play their part; I presume that he meant in fighting terrorism and serious crime. I wholeheartedly agree, but everyone must play their part in accordance with law. Clauses 35 and 36 seek to replicate provisions that are already in DRIPA. At the time when DRIPA was passed, the Government claimed that RIPA had always had extraterritorial effect and that the provisions in DRIPA were simply intended as clarification, but that claim was misleading and ill-founded in law.

As I tried to indicate in my intervention a moment ago—it was partly in jest, as Conservative Members frequently complain about legislation from continental Europe, but it was also serious—in general terms, legislation passed by the UK does not have direct effect in other jurisdictions, just as we would not expect the law of France to have direct effect in the United Kingdom. For the Government to claim that RIPA had extraterritorial effect without the Act even saying so makes absolutely no sense.

The Minister referred to David Anderson’s report, “A Question of Trust”. David Anderson noted at paragraph 11.17 of the report that

“overseas service providers are generally unhappy with the assertion of extraterritoriality in DRIPA 2014, which they did not necessarily accept (despite the view of the UK Government) to have been implicit in the previous law and had not encountered in the laws of other countries.”

As a Scottish nationalist, I forebear from commenting on the unique assertion of the United Kingdom that its law applies in everyone else’s country when others do not claim that, but I will move on with the quote from David Anderson:

“While legal compulsion was in principle preferable to voluntary compliance, it was thought that the unilateral assertion of extraterritorial effect would be met by blocking statutes, was not ‘scalable to a global approach’ and was viewed as ‘a disturbing precedent’ for other, more authoritarian countries.”

There is a concern that, if the United Kingdom decides to tell the world that its legislation applies in other countries, it would be a spur for more authoritarian regimes to do likewise.

David Anderson went on to note that when countries seek to enforce their legislation extraterritorially, such powers might come into conflict with the legal requirements in the country in which the company that has been asked to comply through a legal request is based or stores its information. Companies explained to David Anderson that they did not consider it was their role to arbitrate between conflicting legal systems. That must be right. The protection of human rights should not be left to the good will and judgment of a company, nor indeed should the enforcement of important powers to fight terrorism and serious crime be left to the judgment of a company.

David Anderson went on to say that principled concerns had been expressed by companies:

“They expressed concerns that unqualified cooperation with the British government would lead to expectations of similar cooperation with authoritarian governments, which would not be in their customers’, their own corporate or democratic governments’ interests.”

During discussion of David Anderson’s reports, about the draft Bill and on Second Reading on the Floor of the House, we have heard frequently that the Bill, if the British Parliament gets it right, could be an international template. That is what worries me about the clauses: the example is not a good international one to set, unilaterally to declare that our law must apply in other countries, because there is a real risk that authoritarian regimes might do likewise. We would not want that.

[Lucy Frazer]

I am looking at the clause, which is not massively dissimilar to all the provisions in the White Paper about service on companies in or out of jurisdiction. The clause is on service, so I am struggling with the hon. and learned Lady’s talk about extraterritoriality.

[Joanna Cherry]

As I said, I am dealing with clause 35, “Service of warrants outside the United Kingdom”, and with clause 36, “Duty of operators to assist with implementation”, which serves clause 35 and imposes a duty on operators to assist with implementation outside the UK. That is why, as I said at the beginning of my submission, clauses 35 and 36 have to be discussed together.

I want to be clear that I am not saying that we should not have provisions that deal with extraterritorial enforcement, or that we should not have allowance for it. Clearly, we have to have that, but the question is how we go about it. Mutual legal assistance agreements have already been mentioned and, in my submission, the most appropriate and probably most successful way for the British Government to seek to access information held overseas or by companies based overseas, or to have provisions that will allow the Government to do so, is to extend and improve the use of the mutual legal assistance agreements.

In “A Question of Trust”, David Anderson concluded in recommendation 24 that

“the Government should…seek the improvement and abbreviation of MLAT procedures, in particular with the US Department of Justice and the Irish authorities”—

Ministers alluded to that—

“and…take a lead in developing and negotiating a new international framework for data-sharing among like-minded democratic nations.”

David Anderson’s report also referred to the work of Sir Nigel Sheinwald, and we have heard a bit about that already. David Anderson suggested that Sir Nigel’s could be the “decisive voice” in the matter. In a written statement in response to the Anderson review on 11 June last year, the Prime Minister said:

“the Government will be taking forward Sir Nigel’s advice, including pursuing a strengthened UK-US Mutual Legal Assistance Treaty process and a new international framework. As David Anderson recognises in his report, updated powers, and robust oversight, will need to form the legal basis of any new international arrangements.”

It is most regrettable that, in the light of what the Prime Minister said, this Bill is completely silent on the promised new framework. Instead, it simply returns to what I would submit is a rather lazy and potentially dangerous assertion of extraterritorial effect. It is concerning that a piece of legislation that purports to be comprehensive on this matter is silent on the significant issue of how surveillance operates in the global communications environment, despite the fact that the Prime Minister outlined the need for reform.

My argument is that these two clauses are wholly inadequate to achieve what the Government say they want to achieve. They fly in the face of legal principle and, importantly, they could cause international political difficulties as well as international commercial difficulties.