Draft Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-keeping Purposes) Regulations 2018 Draft Investigatory Powers (Technical Capability) Regulations 2018 Draft Investigatory Powers (Review of Notices and Technical Advisory Board) Regulations 2018 Draft Investigatory Powers (Codes of Practice) Regulations 2018

Nick Thomas-Symonds Excerpts

Thursday 25th January 2018 General Committees

[Nick Thomas-Symonds (Torfaen) (Lab)]

It a pleasure to serve under your chairmanship, Mr Rosindell.

I will make a few general remarks and then deal with the regulations in the same order as the Minister, for the convenience of the Committee. I pay tribute to the work done on the Investigatory Powers Bill during its passage through Parliament, particular that of my predecessors in the shadow Home Office team, who sought reassurances and changes, and that of my predecessor as the Member of Parliament for Torfaen, the now Lord Murphy, who chaired the cross-party Joint Committee on the Draft Investigatory Powers Bill, which considered it in detail and suggested a number of changes.

Turning to the draft Investigatory Powers (Codes of Practice) Regulations 2018, the Opposition believe that strong powers should always be accompanied by strong safeguards. The regulations bring into practice five specific codes under paragraph 1(1) of schedule 7 to the Investigatory Powers Act, dealing with the matters of bulk acquisition of communications data, equipment interference, interception of communications, national security notices, and the intelligence services’ retention and use of bulk personal datasets. The Opposition believe that in the context and framework of the Act the codes of practice are important, and we do not oppose bringing them into effect. As the Minister has already set out, clarity, best practice and compliance with them across the board is extremely important, and I hope those codes will have that effect.

Secondly, the draft Investigatory Powers (Technical Capability) Regulations 2018, set out the obligations that may be contained in a technical capability notice given by the Secretary of State under the Act. Clearly, for the Act’s provisions to work, relevant operators—defined as a postal operator or a telecommunications operator—have to have technical capability, and a technical capability notice imposes obligations to ensure that those bodies have the ability to provide assistance regarding warrants and authorisation. The regulations clearly set out the obligations that can be placed in notices, and telecommunications operators that provide only banking, insurance, investment or other financial services are excluded. There is also a requirement that certain obligations apply only to operators providing a service to more than 10,000 customers. We believe that those limitations are sensible. We also believe in the importance of necessity and proportionality, to which the Minister has already referred. Therefore, on that basis, the Opposition will not oppose the regulations.

Thirdly, the draft Investigatory Powers (Review of Notices and Technical Advisory Board) Regulations 2018 apply where a data retention notice has been issued and the body concerned wishes to review any part of it as unreasonable. In those circumstances, it can be referred to the Secretary of State for review, but he or she has to consult the Technical Advisory Board. That referral has to be within 28 days, starting from either when the notice was given, or when a particular variation was made. The Technical Advisory Board has to consider the technical requirements and financial consequences of the notice for the person making the reference.

The regulations are also clear in terms of the composition of the Technical Advisory Board. There has to be a minimum of 13 members and a maximum of 15. Six must represent the interests of the operators, on whom obligations can be imposed by a retention notice, a national security notice or a technical security notice. The board has to have at least one and a maximum of three members who are independent, not representing either those on whom the obligations can be imposed or those who can apply for warrants and authorisation. Again, the Opposition believe that the regulations seem to constitute useful safeguards in the context of the Act, and we will not oppose them.

The fourth and final set of regulations is the draft Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-keeping Purposes) Regulations 2018. Section 3 of the Act creates an offence of intentionally intercepting a communication during transition by a telecommunication system without lawful authority. The regulations set out the conduct that can be authorised: it has to be for one of the purposes set out in the regulation, and it has to be done by or with the express consent of someone who has the right to control the operation or use of the telecommunication system in question. There are also further restrictions in the regulations. We believe that that framework, with intentional interception being illegal save in the prescribed circumstances, provides a very sensible balance. Again, the Opposition will not oppose the regulations.