Investigatory Powers Bill (Sixteenth sitting)
Robert Buckland ExcerptsTuesday 3rd May 2016
(8 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 3 May 2016 - (3 May 2016)
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 869, in clause 223, page 172, line 41, leave out sub-paragraph (i) and insert—
‘(i) is about an entity to which a telecommunications service is provided by that telecommunications operator and relates to the provision of that service,”
This amendment clarifies the definition of communications data, limiting requirements on organisations to be providing data about the services that they supply.
It is a pleasure to welcome you back to the Chair, Mr Owen. This is an amendment to the interpretation clause dealing with telecommunications definitions, in particular subsection (5), which deals with the definition of communications data. The amendment would replace subsection (5)(a)(i) with the purpose of clarifying that the definition of communications data applies to the providers of the relevant telecommunications services, rather than allowing an organisation to be required to provide data about services it does not provide. Without the amendment, the definition of communications data is flawed because it does not tie the data to the provider of the telecommunications service and therefore seems set to encompass third-party data, which I know the Home Office denies is the intent.
The amendment would make two small changes. First, it specifies that the telecommunications service has to be provided by that telecommunications operator—in other words, it avoids pulling in third-party data. Secondly, it specifies that the data relate to the particular service provided and not to a different one. I will be interested to hear what the Solicitor General has to say about this amendment, which seeks to clarify and tighten up the clause.
The Solicitor General (Robert Buckland)
It is good to see you back in your place, Mr Owen. I look forward to a fruitful session.
I welcome the hon. and learned Lady’s remarks. We considered these issues in the context of part 4, in particular third-party data. I do not want to rehearse the arguments about why we consider the code of practice to be the appropriate place to enforce the commitment made by my right hon. Friend the Home Secretary on the Floor of the House on Second Reading. However, the Government note the strength of feeling on this issue, as evidenced by the outcome of the vote on an earlier amendment. We have heard that message loud and clear, so we are considering whether we could do more to make the commitment clear. I hope that that gives the hon. and learned Lady some reassurance that we are taking these matters seriously, and I am grateful to her for raising them.
The aim of the amendment appears to be to prevent a public authority from obtaining third-party data and to prevent a communications service provider from being required to retain those data. I am not sure that the amendment achieves that desired outcome. It would remove third-party data from one element but not from all elements of the definition of communications data. I do not think there is any debate about the need to get the definition of communications data right, but it must correctly and logically classify the data held by CSPs or what can be reasonably obtained by them. The principle of communications data is clear; changing the definition so that the classification of data changes depending on which provider holds it would cause a degree of confusion that I am sure the hon. and learned Lady does not intend.
My first argument is that the clause is not the right place to prevent public authorities from obtaining third-party data or to prevent a CSP from being required to retain them. Clause 53(5)(c) makes it clear that a communications data authorisation can provide for the obtaining of third-party data where that is reasonably practicable for the communications service provider. That maintains the existing provision under the Regulation of Investigatory Powers Act 2000. Where a CSP holds communications data, whether in relation to its services or those provided by a third party for its business purposes, or where it is able to obtain them, they should be available to the public authorities for the statutory purposes in the Bill. We should not put them out of the reach of law enforcement agencies, based solely upon which company holds the information.
I suspect that the hon. and learned Lady’s intent may be to stop a service provider being forced to comply with an unreasonable requirement relating to third-party data—[Interruption.] I am grateful to her for indicating her assent. I assure her and the Committee that, in my view, the Bill already does that. A provider is required to comply with a request for comms data, including third-party data, only where reasonably practicable for them to do so. There is no need to impose a further restriction on that basis.
I recognise the sensitivities of third-party data, but I am afraid that a blanket restriction on its acquisition is not the way forward. We consider that the Bill and the code of practice strike the right balance. On the basis of my earlier assurances to the hon. and learned Lady about getting the language clear, I invite her to withdraw the amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 223 ordered to stand part of the Bill.
Clause 224 ordered to stand part of the Bill.
Clause 225
General definitions
Joanna Cherry
I beg to move amendment 870, in clause 225, page 177, line 11, at end insert—
‘(a) an advocate,
(b) a barrister,
(c) a solicitor.’
This amendment provides a definition of a “professional legal adviser” relating to use of the term in clauses 25, 100, 135 and 171.
I am grateful to the Law Society of Scotland for drawing my attention to the necessity of this amendment. When we debated the clauses on legal professional privilege—we have done so on a number of occasions during this Committee’s proceedings—I drew attention at an early stage to the Law Society of Scotland’s evidence to the Joint Committee. It gave evidence alongside the Law Society of England and Wales and expressed its shared and serious concerns about the requirement to provide for the protection of legal professional privilege on the face of the Bill. It is pleased that the Government have taken steps to do that, although it is not happy with the extent of the protection provided. That is perhaps a debate for another day.
The purpose of the amendment is to deal with the definition of items subject to legal privilege at line 29, on page 175. The amendment deals with the definition in relation to Scotland and would define a “professional legal adviser” as a person who is an advocate—that is, of course, the correct professional designation for counsel in Scotland or a Scottish barrister—a barrister or a solicitor. The aim is to avoid leaving the definition of a “professional legal adviser” open to too wide or ambiguous an interpretation. It will limit the definition of those who are qualified to provide professional legal services to advocates, solicitors and, in certain circumstances, barristers. I will be interested to hear what the Solicitor General has to say about the proposed definition of a “professional legal adviser”.
The Solicitor General
When I saw the amendment, I was reminded of points I made earlier regarding the dangers of over-defining either legal professional privilege itself or those who are subject to it. Let us remind ourselves that legal professional privilege exists not to create a special category of person—in this case, a lawyer—who is exempt from requirements by which the rest of us have to abide, but to protect the client and the integrity of the advice that a lawyer may give to their client. My concern about the proposed definition is that it limits the definition of what items would be subject to legal privilege. For example, legal executives might well be in the position where they are giving advice and are covered by legal professional privilege. Even paralegals could be, should be and would be covered by legal professional privilege.
I absolutely accept the intention behind the amendment, but however well intentioned it might be, trying to define “professional legal adviser” in the Bill would actually damage and undermine the importance of legal professional privilege. We have had many debates about it, but I think the Bill serves to protect that privilege. We are continuing to discuss the precise extent to which that is reflected in all parts of the Bill, but there is no doubt about the Government’s clear intention. I am proud to be a Minister supporting this approach because I always felt that RIPA was deficient in that respect—I held those views long before I became a member of the Government. I am pleased that we are making such progress.
Joanna Cherry
I am interested in the Solicitor General’s point about legal executives or paralegals. Does he agree that, in so far as communications with such individuals would require protection, they would be protected by subsection (1)(b)(ii), which specifies
“communications made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings”?
The Solicitor General
That is a good point, but there is a danger that we overcomplicate the situation and end up restricting what is commonly understood as the important legal professional privilege that exists between lawyer and client. Instead of overcomplicating it, it would be far better to keep maters straight and reflect the position provided for in the Police and Criminal Evidence Act 1984, which applies here in England and Wales, the Police and Criminal Evidence (Northern Ireland) Order 1989 and the definitions relating to Scotland. The other statutes for England, Wales and Northern Ireland do not define “professional legal adviser” and I do not see a compelling need to do so here. As I have explained, the Bill goes a long way towards protecting that important legal privilege and serving the interests that that privilege is all about. It is not about the lawyers but the client. Fundamentally, it is that communication that merits special protection.
Joanna Cherry
I wholly accept that it is not about lawyers but about the client, but is there not a need to define what is meant by “professional legal adviser”? That is all this is about really.
The Solicitor General
The hon. and learned Lady puts her case with her customary spirit and brio, if I may say so, but despite her attempts to persuade me, I am concerned that if we seek to narrow the definition in the way the amendment would, the sort of unintended consequences that I know the hon. and learned Lady would be very reluctant to see happen might flow. We should not, in the context of primary legislation, start to define what is better explained in other ways. For that reason, I urge her to withdraw the amendment.
Joanna Cherry
I hear what the Solicitor General has to say, and in the circumstances I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 225 ordered to stand part of the Bill.
Clauses 226 to 231 ordered to stand part of the Bill.
Schedule 9 agreed to.
Clause 232 ordered to stand part of the Bill.
Schedule 10
Minor and consequential provision
The Solicitor General
I have listened with great care to the arguments of the hon. and learned Lady. I absolutely agree that, where a serious error has occurred in the use of investigatory powers, the commissioner should be able to inform those affected. We have clause 198(1) to deal with that. However, I do not agree with the principle that as a matter of course, everyone or anyone subject to the use of a lawful investigatory power should be notified of the use of those powers, even with the caveat “unless it would damage an ongoing serious crime or national security investigation”. Such a principle would mean that we could not exclude the possibility of having to notify suspected criminals and terrorists that powers had been used against them, just because a specific ongoing investigation had stalled or indeed ended with evidence of wrongdoing, but without sufficient evidence to meet the prosecution test.
As hon. Members will know, suspected criminals and terrorists will often appear on the radar of the police and security services at different times and in different contexts. Clearly, it would not be at all appropriate to inform them that investigatory powers had been used in one case, as that could prompt them to change how they behave or communicate and hamper subsequent investigation.
National security is particularly important in relation to this matter, because the amendment would require the commissioner to make the subject of interest aware of the conduct that had taken place. That would not only run contrary to the long-standing policy of successive Governments of neither confirming nor denying any specific activity by the security and intelligence agencies; it would essentially require the techniques that they use in specific cases to be made public. That cannot be in the public interest. It would assist terrorists and criminals in their operations, which I am sure cannot be the intention behind the amendment.
Furthermore, the commissioner can delay notification only on the basis of serious crime rather than of crime generally, meaning that the amendment would require the commissioner to inform suspects in active criminal investigations that their communications data had been acquired. One example is an investigation into stalking. It may well not meet the serious crime threshold, but as we have discussed in another context, communications data could be essential, because they could show contact between two parties. My worry about the amendment is that it would require the stalker to be informed that his communications data had been requested, which surely cannot be the intent.
Joanna Cherry
Does the Solicitor General agree that new clause 12(3) deals with the very problem that he has just identified? It says:
“A Judicial Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (2) if the Judicial Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security investigation relating to the affected party.”
The Solicitor General
I am afraid that it does not, because it uses the words “serious crime”. I have given an example that might not be seen as a serious crime, although as we all know, stalking is absolutely no joke to the victims and can lead to extremely serious consequences for them. I know that the hon. and learned Lady agrees with me about all that.
Beyond the principled objections to the amendment, there are numerous practical problems. It would not be practical, for example, for the commissioner to make everyone whose data were subject to a data retention notice aware of that fact. The commissioner would have to require the relevant telecommunications operator to provide them with a list of all relevant customers, and that operator would have to inform the commissioner every time a new customer joined the service. I worry that it would be pretty easy for criminals to use that process to identify services that they could use to avoid detection, and that unreasonable burdens would be put on all the public authorities covered by the Bill.
Joanna Cherry
By way of probing, if we were to delete the word “serious”, so that the subsection read, “notification may defeat the purposes of an ongoing criminal investigation or a national security investigation,” would that deal with the Solicitor General’s concerns?
The Solicitor General
I am grateful to the hon. and learned Lady for the way in which she is seeking a reasonable compromise, but I worry that her proposed approach is, on that basis, unnecessary. We already have checks and balances in the framework of the Bill that allow for serious error to be properly identified and dealt with, and for those affected to be notified. As I was saying, I worry that we would end up placing unreasonable burdens on public authorities by requiring them constantly to make a case to the commissioner about whether what they were doing would hamper national security or crime investigations if suspects were told that investigatory powers were being used against them. It would be far better for the police to spend their time and money on getting on with the work of investigating criminals than on determining whether individuals should be informed about what we should not forget is perfectly lawful investigative activity, with the caveat I mentioned about serious error.
Furthermore, in the context of bulk warrants under parts 6 and 7 of the Bill, the public authority or commissioner would need to examine all the data collected under the warrant to identify those individuals whose data had been collected. That would be impracticable and would actually lead to greater intrusions into privacy, because, as we know, bulk data are not examined to that degree unless there is a specific purpose and a properly framed approach. I am sure that cannot be the intention of the amendment. These proposed new clauses are at best unnecessary and at worst frankly unhelpful, and risk undermining the work of our law enforcement and security and intelligence agencies.
On new clause 13 and the audit trail point, the draft code of practice, at paragraph 8.5, requires that
“When information obtained from equipment interference is used evidentially, the equipment interference agency should be able to demonstrate how the evidence has been recovered, showing each process through which the evidence was obtained.”
There will, however, be circumstances when equipment interference is used on an intelligence-only basis—that is, a non-evidential basis. Given those points, and given that it is in the interests of law enforcement and the intelligence agencies to ensure that where equipment interference is used to support a criminal investigation, that is done accordance with evidential standards, new clause 13 is, with respect, not necessary.
If that new clause is in fact about the enhancement of oversight, we have made it clear that while the powers of the new commissioner are being significantly increased, their resources will be greatly increased, which means that they will be able to audit, inspect and review equipment interference agencies as they see fit. In addition, the draft code of practice for equipment interference will require the relevant agencies to keep extensive records to support and enable oversight. There has been no suggestion from the current oversight commissioners in respect of property interference warrantry that a statutory requirement for an audit trail is necessary.
The hon. and learned Lady properly made reference to recent ECHR authorities, most notably Zakharov, a case that I have looked at in the context of these debates. We have to be careful about Zakharov, because it deals with the targeted interception regime—a particular aspect of the debate, as she knows—rather than the bulk regime, in relation to which it is sometimes prayed in aid. I give that caveat in the spirit of fairness, because of course the Zakharov case contained reference to Kennedy v. United Kingdom, a 2010 case in which the UK was found to be in compliance with article 8. In particular, the role of the Investigatory Powers Tribunal was seen as an important part of the checks-and-balances mechanism that allowed the Court to come to the conclusion that the article 8 requirements were satisfied.
Investigatory Powers Bill (Fourteenth sitting)
Robert Buckland ExcerptsThursday 28th April 2016
(8 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 April 2016 - (28 Apr 2016)
Keir Starmer
I can be brief. The short amendments would provide that when a person is notified so that they can pursue a remedy if so minded or advised, they are given sufficient detail to do so. I think they are self-explanatory.
The Solicitor General (Robert Buckland)
It is a pleasure to reply on these amendments. In the spirit of the hon. and learned Gentleman’s remarks, I will deal with them as quickly as I can.
The amendments are about a submission prepared by a public authority for the commissioner that relates to an error being shown to an individual affected. With respect, I do not think that is necessary or desirable and I will set out three reasons for that. First, the IPC is already required to provide to the person such details of the error as the commissioner considers necessary. If that test is met by any information provided to the IPC in the course of the submissions made pursuant to clause 198(5), the Bill already requires that the judicial commissioner provide those details to the person. The amendment is therefore unnecessary.
Secondly, I am concerned that the amendment might inhibit disclosure to the commissioner. The submission is intended to assist the commissioner in deciding the seriousness of the error and the impact of disclosure; as such, it will contain a full and frank admission of how the error occurred and what measures have been put in place to prevent it from happening again. If the public authority knows that any submission it makes will be provided to an individual, out of necessity, to preserve the secrecy of its operating systems and methods, it may need to be less candid in its submission to the commissioner. That will force the commissioner to take a decision on whether it is in the public interest for an individual to be informed without, regrettably, knowing the full facts behind the matter.
Finally, if a case is brought to the Investigatory Powers Tribunal, disclosure of the relevant material will occur during the proceedings in the normal way. If the IPT thinks that any part of the submission should have been disclosed, it can order that to be so disclosed. The tribunal is best placed to rule on what should or should not be disclosed as the case progresses, rather than what I would regard as inappropriate disclosure before the initiation of proceedings.
Amendment 791 would remove the requirement for judicial commissioners to consult the Secretary of State before releasing information to any public authority or other person. I have made the point before and make no apology for repeating it that, given the responsibility of the Executive for the protection of the public, it is right that the Executive be given the opportunity to express an opinion on where the public interest lies. For those reasons, I respectfully invite the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 198 ordered to stand part of the Bill.
Clause 199
Additional functions under this Part
Joanna Cherry
I beg to move amendment 792, in clause 199, page 154, line 17, at end insert—
“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”.
This amendment would give the Judicial Commissioners power to refer issues of concern to the IPT without having to rely on a complaint being made.
The amendment, which would insert a new subsection in clause 199, was proposed by the Equality and Human Rights Commission and is jointly tabled by the Scottish National party and the Labour party. It would give the judicial commissioners power to refer issues of concern—matters that came to their notice and about which they were concerned—to the Investigatory Powers Tribunal without having to rely on a complaint being made.
Under the Bill as drafted the unlawful use of investigatory powers may not receive sufficient scrutiny, because often the subjects of surveillance will be unaware of it and so not in a position to make a complaint. The amendment would improve the safeguards in the Bill by addressing that problem so that where judicial commissioners are aware of a concern, they can refer it to the Investigatory Powers Tribunal. The judicial commissioners decide whether to approve the issue of warrants and are well placed to identify issues of systemic concern and of law requiring resolution by the tribunal. They are, in fact, much better placed to do so than those subject to surveillance, because they have an overview of the whole picture. It is therefore sensible to permit them to refer matters of concern to the tribunal.
The amendment is in line with a number of recommendations made during prelegislative scrutiny. Recommendation 66 of the Joint Committee on the Draft Investigatory Powers Bill was that
“The Judicial Commissioners should be able to make a direct reference to the Investigatory Powers Tribunal where they have identified unlawful conduct following an inspection, audit, investigation or complaint.”
Recommendation 16 of the Royal United Service Institute’s report, “A Democratic Licence to Operate”, says:
“The judicial commissioners should have a statutory right to refer cases to the IPT where they find a material error or arguable illegality or disproportionate conduct.”
The Interception of Communications Commissioner’s Office, in written evidence to the Draft Bill Committee, made similar recommendations.
In their response to prelegislative scrutiny, the Government did not accept those recommendations, but they appear to have agreed that judicial commissioners should have this power, as it is referred to in the draft codes of practice. For example, the draft code of practice on interception of communications states:
“The Commissioner may, if they believe it to be unlawful, refer any issue relating to the use of investigatory powers to the Investigatory Powers Tribunal”.
However, there is no express power to do this in the Bill. We argue that the referral power needs to be set out clearly in the Bill for two reasons.
First, such an important power should be in primary legislation, rather than in a draft code of practice that may be subject to revision after the passage of the Bill through Parliament. If it is in the Bill, any change to the power in future would be subject to greater parliamentary scrutiny, requiring the amendment of primary legislation rather than the mere revision of codes of practice. Secondly, providing for the power in codes of practice but not in the Bill creates uncertainty, which the amendment would resolve. Without the amendment, there may be a lack of certainty about whether the judicial commissioners have what would be a crucial power, and it could be argued that the codes of practice cannot create such a power without it being in the Bill.
The confusion over those issues could be resolved in a straightforward manner by the Government accepting the amendment. Their general response to prelegislative scrutiny referred to the fact that courts and tribunals do not usually have the power to carry out investigations on their own initiative, but the amendment would not give the tribunal that power; rather, it would give the judicial commissioners the power to refer an issue to the tribunal, which the tribunal would then investigate on the initiative of the judicial commissioners. In support of that approach, I note that the Investigatory Powers Tribunal explains on its website:
“The Tribunal adopts an inquisitorial process to investigate complaints to get to the truth of what has happened in a particular case, unlike the adversarial approach followed in ordinary court proceedings.”
I suggest that that approach is appropriate in situations such as those envisaged in the Bill, where the victims of the measures will not have knowledge of them but the judicial commissioners will. They may therefore refer to the IPT, and because the IPT is an inquisitorial rather than an adversarial body, it is well placed to investigate a referral from the judicial commissioners. I ask the Government to take on board the amendment in the spirit in which it is intended and indicate that they will agree to it.
The Solicitor General
I am grateful to the hon. and learned Lady for the way in which she has sought to persuade the Committee of her case. She is quite right that the IPT has an inquisitorial procedure rather than an adversarial one, but it still needs a claimant. It would be wholly inappropriate if the commissioner ended up being the complainant and therefore a party to the proceedings. With respect to her and those who proposed the amendment, although I appreciate their intentions, they mischaracterise the process. There will indeed be a claimant, but that will be the individual or body that is the subject of the error. Where the error is serious, the judicial commissioner will inform that person or body of their right to apply to the IPT for a remedy. As all authorities are already required to provide the IPT with all the information it needs in the course of its investigations, it is difficult to see the benefit of the amendment.
Suella Fernandes (Fareham) (Con)
Does my hon. and learned Friend agree that the heavy common law duty of candour on the authorities that will be the subject of such inquiries is applicable to these jurisdictions? Those authorities will have to disclose everything, even if that militates against the applicability of their evidence. That position was endorsed by the divisional court in the case of Chatwani.
The Solicitor General
I am grateful to my hon. Friend for reminding us about the duty of candour that applies to public bodies, which is of course material.
In addition, the clause has already been amended, pursuant to the Joint Committee’s recommendation 59, to make it clear that a commissioner does not need to consult the Secretary of State before sharing information with or providing assistance to the IPT. That is provided for in clause 199(4) and may well address many of the concerns raised by the hon. and learned Member for Edinburgh South West about the Secretary of State being some sort of bar to proper disclosure and sharing of information. That is not the case under the Bill as already amended. As for providing the IPT with all information relating to relevant errors, as I have said, courts and tribunals cannot and will not consider those issues without a party first having brought a claim.
Within the framework of the clause, we have the necessary structure for proper and frank disclosure to the IPT by the commissioners of relevant material that will assist any party in bringing an action where they have been subject to an error or some form of wrong. To conflate the two would lead to more confusion and would be unnecessary. With respect, I urge the hon. and learned Lady to withdraw the amendment.
Joanna Cherry
I beg to move amendment 824, in clause 203, page 158, line 33, at end insert—
‘(1A) A disclosure pursuant to subsection (1) will not constitute a criminal offence for any purposes in this Act or in any other enactment.
(1B) In subsection (1), a disclosure for the purposes of any function of the Commissioner may be made at the initiative of the person making the disclosure and without need for request by the Investigatory Powers Commissioner.”
We had our old friend economic wellbeing a moment ago, and now we have our old friends whistleblowing and the public interest. Clause 203 is, rather intriguingly, titled “Information gateway” and provides that a disclosure to a commissioner will not violate any duties of confidence or any other restriction on the disclosure of information. This amendment would put it beyond doubt that voluntary, unsolicited disclosures are protected and that a whistleblower is protected from criminal prosecution.
The amendment reflects a concern, which we have already heard in the Committee, that provisions in the Bill may inadvertently risk discouraging or preventing individuals within public authorities or agencies, or in communication services providers, from approaching the Investigatory Powers Commissioner with concerns or communicating with the commission frankly.
The Solicitor General
I am sure the hon. and learned Lady is going to outline her arguments with brevity, but may I assist her? I recognise the sentiment behind the amendment and am of a mind to give them further consideration. On that basis, I invite her to withdraw the amendment.
Joanna Cherry
I am grateful for that. We have had a lot of debate about these issues already, and I am very grateful to the Solicitor General for indicating that he is going to look at them seriously. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 203 ordered to stand part of the Bill.
Clause 204
Funding, staff and facilities
Keir Starmer
The amendments relate to the grounds for appeal. The Bill provides that appeal on an error of law will only lie when an appeal raises
“an important point of principle or practice, or…there is another compelling reason to grant leave.”
The two amendments would remove that restriction and create a right of appeal against an error in law.
The history and background of this is that David Anderson raised the issue in his report last year. He suggested that appeals be permitted on an error of law. When it scrutinised the Bill at the tail end of last year and the beginning of this year, the Joint Committee agreed that an appeal should be permitted on any error of law. It is right that appeals should be allowed on errors of law, so that they can be corrected, and so that the right decision is arrived at on the right legal analysis.
The Government have refused to amend the Bill in the light of those recommendations, maintaining that there needs to be an important point of principle or practice or another compelling reason for granting leave. That is unpersuasive. David Anderson and the Joint Committee were absolutely clear—they were right—that an appeal should lie where there is an error of law.
The Solicitor General
I am afraid that I am not persuaded by the amendments. I am concerned that within the Bill the IPT and the appellate court already have the significant discretion necessary when granting permission to appeal. I am worried that the amendments will have a detrimental effect. There is a risk that we will end up with appeals in cases where there is no significant point of law, and that is frankly a waste of everyone’s time and resources.
I want to deal with the background to clause 208. The Bill represents a significant step. The only route of appeal currently available to complainants from decisions of the Investigatory Powers Tribunal is by reference directly to the European Court of Human Rights. For the first time, we have established a domestic right of appeal, which will enable parties to seek redress here in the UK court system. That will also enable appeals to be heard more quickly. I think we would all agree that that is a massive step forward. Appeals will be heard by the Court of Appeal of England and Wales, or the Court of Session in Scotland or the Court of Appeal in Northern Ireland, and ultimately it will be possible for appellants to seek permission to appeal from the appellant court to the Supreme Court.
I understand the sentiment behind the amendments, but there has to be balance and I think our approach is right. The Investigatory Powers Tribunal or relevant appellant court will be able to grant permission to appeal if it considers that it would raise
“an important point of principle or practice”,
or additionally, if there are any other compelling reasons to grant leave. That gives the courts an appropriately wide discretion when deciding whether permission should be granted. That makes it possible for any case that raises a significant point of law to be dealt with at appellate level.
As hon. Members are no doubt aware, this type of restriction is not unusual. Our approach in the Bill is directly modelled on restrictions that apply to judicial reviews from decisions of an upper tribunal—that is civil procedure rule 54.7A. I consider that the same restrictions should apply to appeals from the IPT.
It would be helpful for me to take the opportunity to put on record the number of cases that were considered by the IPT in 2015. Two hundred and nineteen cases were considered, of which 47%—nearly half—were deemed to be frivolous or vexatious; 30% were given a “no determination”; 17% were out of the IPT’s jurisdiction, withdrawn or not valid; 3% were out of time; and only 4% were found to have any merit to them.
Therefore, although creating an appeal route is very important—I am proud that we are doing that—not having any limits on that route would mean, I am afraid, a considerable amount of taxpayer money and court and agency time and resources frankly being wasted on continuing to manage and defend cases that, sadly, have no grounding in fact or merit in law. That is why I think the appeal route as currently delineated will still allow important cases that need further judicial scrutiny to progress.
Therefore, to strike the right balance, having broken new ground with the domestic right of appeal, I commend the clauses unamended to the Committee and urge the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
The Solicitor General is right that this is an important step forward, but it also needs to be the right one. I am not convinced that the point about frivolous and vexatious applicants has any bearing or substance, because there has to be an appeal on a point of law and it can be allowed only on a point of law. Therefore, if it is on a point of law, it is difficult to argue that it is frivolous and vexatious. Of course, the amount of those should be reduced—they waste a great deal of time—but this amendment would not increase the number of frivolous and vexatious cases, nor would it give them any grounds for success.
This important point was pressed by David Anderson and the Joint Committee, and I wish to press this amendment to a vote.
Question put, That the amendment be made.
Keir Starmer
We have a long-standing principle of openness and open justice in this country. Case law as long as my arm sets out the importance of open justice. I readily accept that that principle, which we all adhere to, is more difficult to achieve in this field than in other fields, but with these amendments we are really arguing about the default position, not the automatic position.
On page 240 of his report, David Anderson recommended that the IPT be changed—I recognise what the practice is—
“to make open hearings the default and disclose the fact that closed hearings have taken place”.
The Joint Committee on the Draft Investigatory Powers Bill recommendation 74 is that, when making a decision on whether part of a hearing should be open or not, the tribunal should apply a public interest test.
This amendment would make open hearings the default position, which was David Anderson’s preference, but to have a mechanism to change the default position to closed proceedings. It is important that we keep to the principle of open justice. People fought for it for many years, and it is one of the central planks of our justice system. A default position that proceedings are open is in keeping with that principle; the default position set out in the Bill is not. For those reasons, I will press this amendment.
New clause 20 deals with declarations of incompatibility, and speaks for itself. It would amend section 4 of the Human Rights Act 1998 to give the IPT the power to make a declaration of incompatibility. Where there is a problem with legislation and convention rights that cannot be resolved during interpretation, the IPT would have the power to make a declaration of incompatibility, which would then trigger a dialogue with Parliament about what, if any, modifications or alterations to legislation should follow. That has proved worthwhile and effective so far under the Human Rights Act 1998.
The Solicitor General
In prefacing my remarks on the hon. and leaned Gentleman’s arguments, I, too, pray in aid my strong and long-held commitment to open justice. Like him, I practiced it for many years, and I believe fundamentally in it. However, as a parliamentarian, I have come to accept that there are occasions, which need to be very carefully prescribed, when that principle has to be departed from, but that must only be in cases where there is a clear public interest and a necessity that everybody would understand. That is why every time these matters arise—whether it was when the Special Immigration Appeals Commission was created nearly 20 years ago, or when the Justice and Security Act 2013 created closed material proceedings three or four years ago—they are the subject of very intense debate and proper scrutiny. I therefore welcome the opportunity to look closely at the position with regard to the new provisions in the Bill.
The amendment seeks to amend section 68 of the Regulation of Investigatory Powers Act 2000 to provide that the Investigatory Powers Tribunal must hold its proceedings in public unless closed proceedings are in the public interest. As has been outlined, the amendment would restrict the circumstances in which that can take place and would require the appointment of special advocates.
First, on the necessity, we are in something of a transitional period, but I will give the Committee some reassurance. Rule 9 of the tribunal rules, pursuant to section 69 of RIPA, currently states that all proceedings, including oral hearings, should be held in private. The problem is that the rules have not been updated to take into account changes that were introduced by the tribunal many years ago. There was a ruling in the 2003 Kennedy case, which is reported at IPT/01/62 and IPT/01/77, that the tribunal has the discretion to order that hearings take place in public. Happily, since then, in practice the IPT has regularly held open hearings, and copies of its judgments delivered in open proceedings are publicly available on its website.
Keir Starmer
I am not sure that the Solicitor General is right about that. The declaration of incompatibility arises only where the primary legislation requires an outcome that is incompatible with the convention right. By definition, the legislation in place overrides the convention right, which is what bounces it back to Parliament. Technically, he is probably wrong about that. There cannot be a remedy; that is why the amendment is needed.
The Solicitor General
I am interested in that argument, although I am not entirely persuaded by it. I am afraid that the amendment would be a problem across the piece. If courts of lower record could issue declarations, obviously I would not be arguing the point. It would be unusual for us to single out the Investigatory Powers Tribunal as sui generis in this instance.
To return to the point that I was developing, under section 68(5) of the Regulation of Investigatory Powers Act 2000, the IPT is required to make a report to the Prime Minister in the event that it makes a determination in favour of a person that arises from any act or omission made by or on behalf of the Secretary of State. In such circumstances—this may be a helpful and practical point—the Government would of course be required to consider whether legislative change was needed. De facto, our position would be very similar to the result of the declaration of incompatibility.
For example, the IPT recently decided in the Belhaj and Saadi cases, both public judgments, that the regime for certain intrusive surveillance of legally privileged material contravened article 8. I know that this is a slightly different point from declarations of incompatibility pursuant to section 19, I think—I am sure Hansard will help me—of the Human Rights Act 1998. The tribunal is already making findings on the compatibility with rights under the convention.
Finally, I will deal with the question of review of the tribunal. As Committee members will know, the use of investigatory powers has been the subject of extensive reviews, to which we have referred repeatedly in this Committee’s deliberations. None of those reports recommended the wholesale change to how the IPT operates that the amendment suggests. Bearing in mind that we have ongoing and detailed scrutiny and important and recent reviews, I do not believe that we will get added value from a further review. The new clause would also require that any independent review must consider two issues.
The IPT can of course make clear any concerns that it might have about the operation of the tribunal. The tribunal published a report only recently, and it did not express any concerns about its effective operation, so I do not think that a further review will add anything. I believe that the key concerns identified in the amended clause have been and are being addressed. On reasons of lack of necessity, I therefore submit that the new clause would not take us any further. On that basis, I invite the hon. and learned Gentleman to withdraw the amendments and new clauses.
Keir Starmer
I will not press new clauses 20 and 21, but I will press amendment 842 to a vote on the open justice principle.
Question put, That the amendment be made.
Investigatory Powers Bill (Thirteenth sitting)
Robert Buckland ExcerptsThursday 28th April 2016
(8 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 April 2016 - (28 Apr 2016)
The Solicitor General (Robert Buckland)
I thank the hon. and learned Member for Holborn and St Pancras for setting out his case. He will be glad to know that there is more to this than mere cost. I say “mere”, but Ministers and parliamentarians have a duty to ensure we do not burden the Exchequer with unnecessary cost. My primary argument is focused on that. The amendments would only put us in the same position as we will be in under the Bill, but at greater cost.
The Home Office estimates that at least an extra £500,000 would be needed to staff and finance the proposed body. That is not an insignificant sum, which is why the Government are urging restraint when pursuing what might seem an entirely rational, reasonable and logical conclusion. I accept that a number of the bodies and individuals mentioned by the hon. and learned Gentleman would support the thrust of these amendments.
Keir Starmer
Is there a breakdown of the £500,000, given that this is, in broad terms, a structural proposal, rather than a numbers proposal ?
The Solicitor General
The impact assessment published alongside the Bill contains the figure. It is supported by that document, so there has been empirical research. I do not have the full figures, but I imagine that the research is based on estimates of staffing levels. The body would also have to deal with new corporate functions, such as human resources, IT, non-executive directors and procurement, as the hon. and learned Gentleman knows well from his experience as Director of Public Prosecutions. This would be a non-departmental public body similar to, say, the Crown Prosecution Service. As an independent body and a key part of our constitutional arrangements for the prosecution of crime, it would obviously need that structure to maintain its independent role.
The amount of money is not insignificant, and the question I must ask is: what would the measure achieve? I remain unconvinced that it would achieve anything more than the current proposal does, because the powers and duties of the proposed body would remain exactly the same as the commissioner’s responsibilities, and the number of inspectors, technical experts and judicial commissioners employed by the organisation would remain exactly the same.
Joanna Cherry
The Interception of Communications Commissioner’s Office said that a separate body would promote greater public confidence, because it would be independent, with an appropriate legal mandate, and would be public facing. Does the Solicitor General accept that the amendment would promote public confidence if the oversight function were separate from the judicial function?
The Solicitor General
I am grateful to the hon. and learned Lady for her intervention. I know the spirit in which she supports this amendment, because she genuinely and sincerely believes that more needs to be done to promote public confidence. My simple response to her is that the current proposals do promote public confidence in not only the organisation’s operational ability, but, importantly, its ability to deal with the role of inspection.
I respect those who believe that there should be an absolute and complete separation. I suppose it flows from the philosophical view that the desideratum of our constitution should be separation of powers in its pure form. I am afraid that I do not subscribe to that view, and never have done. I think that the British system of checks and balances, which this Bill epitomises, is the better way to achieve the balance between the need for Executive involvement and responsibility for important decisions—on warrantry, for example—on the one hand, and judicial involvement and input into the process on the other. We are achieving that balance in this Bill.
While I respect the philosophical intention behind this other approach, my worry is that we are pursuing too much of a rationalist, purist approach to separation of powers, rather than keeping to the spirit of what the Bill is all about. I am supported—perhaps not quite to the fullest philosophical extent, but certainly practically—by the comments we have heard from people with a strong interest in and knowledge of this area.
There is a value in having a relationship, even a distant one, between the two functions that I have talked about. Indeed, Lord Judge made that point in his evidence to this Committee, when he described how the Office of Surveillance Commissioners works. He said that he “strongly recommended” a model in which the inspectors act as a check on how an authorisation was implemented and then feed back, if necessary, that information to the authoriser, so that there is a full awareness of how warrants are to be put into practice.
There is a strong argument that there is stronger oversight from having one indivisible body that can scrutinise the full lifespan of a warrant, from initial request for authorisation through to implementation. David Anderson himself believes that:
“I have considered whether it would be difficult to combine the judicial authorisation function and the inspectorate in a single organisation, and concluded that it would not…Whilst the judicial function is obviously a distinct one, there is considerable benefit in dialogue: the Judicial Commissioners could advise the inspectorate on matters to look out for on their inspections, and the inspectors could in turn suggest that a warrant be referred back to the Judicial Commissioners if they formed the impression that it was not being implemented as it should be, and that the Judicial Commissioners might wish to consider modifying or cancelling it.”
I accept that the Bill does not prescribe the precise approach in practical terms, but the point is that we want the Investigatory Powers Commissioner to decide what the working relationship should be between the two functions of his or her office. The fact that the Bill is silent on that emphasises the point that we want the degree of operational independence and robustness that I believe the current framework provides.
Of course, there is nothing new about this, because the current oversight bodies—the offices of the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner—are provided for in statute in exactly the same way that it is proposed that this body be provided for in this Bill. I am sure that if the current commissioners—we heard them give evidence—felt that their independence was in any way being constrained, we would have heard about it by now. What we get is oversight, and the bodies responsible for oversight focusing on the core tasks of carrying out inspections and investigations, and avoiding the sort of administration, human resources and IT functions that I have mentioned.
Joanna Cherry
I hear what the Solicitor General says about the essential philosophical difference between those who believe in separating powers properly and those who do not, but does he accept that if the one body has judicial audit and inspection responsibilities, the judicial commissioners will effectively be checking their own homework? Does he really think that that will promote public confidence?
The Solicitor General
I respect the hon. and learned Lady’s point. I answer it by making the important point that we have stronger oversight if the body is able to look at everything from initial authorisation right through to implementation. The dialogue that can occur will therefore be much more immediate and focused, because the body will have a fuller and deeper understanding of the process. We end up with a body that is independent and flexible and will gain the public confidence that she and I want it to.
The worry is that if we pursue the attractive—seductive, almost—course proposed by the hon. and learned Lady and others and separate the powers, we will end up breaking the important links between the executive and judicial functions epitomised by the Bill. I say “links” in a neutral sense, and not in the sense that one can unduly influence the other—far from it. Rather, the Bill allows for the check-and-balance approach that epitomises the British constitution and its organic development over the centuries in a modern and relevant way. As a Tory, I am proud to stand here and argue for those values.
I want to deal with the Investigatory Powers Commissioner’s functions and the amendments seeking direct negotiation with the Treasury, rather than the Secretary of State, on the resources necessary for the commissioner to fulfil their functions. I think I am on safe ground in saying that my right hon. Friend the Home Secretary would warmly welcome not having to be involved in negotiations with the Treasury wherever possible, but I believe that removing his or her function from this negotiation would be an error.
There will be much more familiarity with the work of the IPC at the Home Office than at the Treasury, so the Home Office can make a far more accurate assessment of the resources that the IPC will need. That is important in ensuring that the IPC is properly resourced. Importantly, there can be meaningful challenge by the Home Secretary if they believe that the IPC is asking for too big a budget and is not providing proper value for money.
I do not think it is right or fair to say that the independence of the new IPC will be somehow compromised if it receives funding through a Secretary of State, because plenty of other non-departmental public bodies receive funding via that route, such as the Independent Police Complaints Commission and Her Majesty’s inspectorate of prisons. It is not an unusual or uncommon position, and we would have heard about it if there was an issue with the compromising of those bodies’ ability to act.
The Treasury has made clear in its guidance, “Managing public money”, that
“Functional independence is compatible with financial oversight”.
I am glad to say that the current oversight commissioners have repeatedly made clear in their annual reports that they have always been provided with enough money to undertake their functions. The same route of complaint will be available to the IPC, and I know that Parliament would take a keen interest if there was any suggestion by the new commissioner that the IPC was under-resourced. For those reasons, I respectfully ask Members to withdraw their amendments.
Keir Starmer
I intend to deal with funding under clause 208. I appreciate that new clause 19 is in this group, but that is probably only because it contains the word “commission”, so I will deal with it at a later stage. However, I have listened to what the Solicitor General said.
The amendments are supported by the Interception of Communications Commissioner, who was most concerned about the structural division of the two functions. The Solicitor General says that there are advantages in being able to do an end-to-end review, and that it brings focus; I can see that. If it were an end-to-end review of someone else’s work, that would be a good thing. The structural problem is that, within that end-to-end process, the same team takes the steps and does the overseeing. That is more than just a philosophical issue. It is a practical issue with how oversight works. I am therefore unpersuaded.
The Solicitor General
We have prayed in aid Jo Cavan’s comments quite a lot, and I think it is interesting that she said:
“It is really important for the commissioners to work very closely with the inspectors and technical engineers and so on who will carry out the post facto audits.”
I am arguing that this is supervision of the agencies’ work, and that the hon. and learned Gentleman’s point would be stronger if it were purely about the commission itself.
Keir Starmer
I am grateful to have been reminded of Jo Cavan’s evidence. The Solicitor General is right: there is a mixture of functions, and the oversight has to operate in quite a flexible way in relation to the different functions. However, this is a structural issue, and I therefore press amendment 741 to a vote.
Question put, That the amendment be made.
Mr Hayes
Imitation is the best form of flattery and I have already said that, so I take that contribution not as mere flattery but as a compliment. As the hon. and learned Lady will know, there is a big difference between being flattered and being complimented.
I do think that appearance matters. I do not want to go too far here, because the Solicitor General will have his views, and he is a man of fiercely independent mind on all these matters and speaks with great authority, which is why I am about to give way to him. However, I am not minded to be dogmatic, notwithstanding some of the fundamentals, which I think are important.
The Solicitor General
Having had experience of the JAC process myself, albeit for a junior judicial office, I think that the point is well made about the lack of necessity for renewal of approval by the JAC. However, this is not about that; it is about deployment of a judge to a particular office overseeing an Executive function. That is different from the appointment stage. This is deployment, which is why the Prime Minister should be involved.
Mr Hayes
Yes, and that is the point I was about to come on to: my hon. and learned Friend, with all his usual sharpness of mind, has anticipated what I was going to say about deployment being an organisational issue too, it being about the allocation of resource, and gauging such things as manpower and skills. Those are, in the terms he described, pretty important to the existing arrangements. One would hesitate to drive a coach and horses through that. I am not sure that that is intended, but there are risks associated with excessive radicalism as there are always risks associated with radicalism—I am just as Tory as my hon. and learned Friend.
Joanna Cherry
I hear what the hon. Lady is saying. Initially, I thought she was going to suggest that it would be for judges who were at the end of their judicial careers and would be coming up against retirement anyway. Her point gives me a difficulty with the six-year amendment, but not with the non-renewal amendment. If judicial commissioners are appointed only for three years with a renewal at the end, my fear pertains in so far as they would be there for a very short period of time. They would probably be anxious to stay on for longer, and could well tailor their decision making to guarantee a longer stay. That may not be a concern at present, as I have taken trouble to say, but that does not mean that it could not be a concern for the future.
The oversight of some of the most intrusive and far-reaching powers of the state is important work. Therefore, in tailoring the provisions for the appointment of the judges, we should look not so much to what might be convenient for judges, but to what is necessary to secure proper independence in the eyes of the public. That is about as much as I can say about amendments 745 and 746.
I am pleased to say that amendments 860 and 861 were suggested to the Scottish National party by the Law Society of Scotland, and we have decided to table them because we think they would improve the Bill. They deal with the circumstances in which a judicial commissioner may be removed from office. At present, clause 195 allows for the removal of a judicial commissioner who is bankrupt, disqualified as a company director or convicted of an offence. The clause does not permit the removal of the commissioner for being unfit by reason of inability, neglect of duty or misbehaviour. It is important, in the eyes of the Law Society of Scotland—I endorse its views—that the possibilities of unfitness for office by reason of inability, neglect of duty or misbehaviour are provided for in the Bill.
Very regrettably, it sometimes happens in Scotland—this has happened in my lifetime—that a judge, albeit of the lower courts, has to be removed for reasons of inability, neglect of duty or misbehaviour. I realise that we are dealing with judges at the very senior end of the spectrum, and I very much hope that such steps would never be necessary, but there is no harm in providing for such steps to be taken. Would it not be a very serious matter if a judicial commissioner dealing with the oversight of such far-reaching and intrusive laws were unfit for office by reason of his or her inability, neglect of duty or misbehaviour? We would want to be rid of them, in the best interests of everybody. I commend that aspect of the Law Society of Scotland’s amendments.
If amendment 861 were made, before removing a judicial commissioner the Prime Minister would be required to consult the Lord Chief Justice in England and Wales, the Lord President of the Court of Session in Scotland, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. That additional safeguard of consultation with the heads of the UK jurisdictional judiciaries and the devolved Administrations would provide a check on unjustified attempts to remove the judicial commissioner.
The purpose of the amendments is to prevent unjustified attempts to remove the judicial commissioners and to add grounds for their removal if they were unfit for office by reason of inability, neglect of duty or misbehaviour. I am interested to hear what the Solicitor General has to say about the amendments.
The Solicitor General
Once again, the hon and learned Lady puts her argument succinctly and clearly. I am sure she will forgive me for characterising her as a guardian of independence of the judiciary. Although that is an admirable position to take, I do not think it is necessary in this instance.
I will deal first with the length of appointment. My hon. Friend the Member for Louth and Horncastle put it very well and I do not need to improve upon the argument. We need a relatively significant term—three years—to attract serving High Court judges, but not a term of such length that it would be difficult for them to return to High Court work in the normal course of events. That is why we think three years is an appropriate period. For retired High Court judges, we have to remember the constraints that we are under. A three-year period, with that renewal term, strikes the correct balance. The renewal term is there because this will be technical role, and knowledge and expertise will be developed by the commissioners. Allowing a reappointment will retain that expertise in a balanced and fair way. A six-year period would just be too long, bearing in mind the quality that we want to attract to fill these important and sensitive posts.
I will deal with the question of unfitness. I am sympathetic to the intention behind the amendments, but it might be argued that the proposed wording gave too much discretion to the Prime Minister to remove a commissioner. The conditions listed in clause 195 for removal from office are precisely the same as those for which a High Court judge can be removed from post. Since having held the position of a High Court judge is the qualification for office as a judicial commissioner, the reasons for removal from the two posts should be precisely the same. If a commissioner is demonstrably unfit to perform the role, he or she can still be removed from post if the Prime Minister and, importantly, both Houses of Parliament agree to the removal. That is an admirable check and balance, which deals with the point of competence and fitness to which the hon. and learned Lady quite properly points us.
On the need to consult the judiciary and others concerned in the appointment of commissioners before removing them, I do not think that is necessary because there are only two ways in which a commissioner could be removed from office: first, because the individual had failed to meet the standards expected of a High Court judge; and secondly, via the mechanism of Prime Minister and Parliament agreeing that that person is no longer fit. Those are adequate safeguards that stop the mischief of a commissioner being removed from post on the whim of the Prime Minister alone. I strongly reassure the hon. and learned Lady that there is absolutely no power for the Government—any Government—to remove a judicial commissioner just because they disagree with that commissioner’s views. I can say a Government would not do that, but I am able to go further and say that, on the basis of this framework, the Government simply cannot do that. That is absolutely right and fulfils the objectives that the hon. and learned Lady wishes to achieve through her amendment. On that basis, I urge her to withdraw it.
Joanna Cherry
I have listed carefully to the Solicitor General and the hon. Member for Louth and Horncastle and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 195 ordered to stand part of the Bill.
Clause 196
Main oversight functions
Mr Hayes
The hon. Gentleman wants to take out a part of the Bill that says that, in the exercise of their function, the judicial commissioner should not
“compromise the safety or security of those involved”.
Well, of course they should not “compromise the safety” of security personnel. The hon. Gentleman may say that that is self-evident, but, my goodness, if we took out everything that was self-evident we would have a Bill half as long as it is. The self-evident is sometimes an important part of guaranteeing all those things that we might, with good will, take for granted. That is the very nature of legislation, as the Solicitor General knows very well indeed.
The Solicitor General
I take on board what the hon. Member for Hove said, but we are talking about the oversight function. I reassure him that it is not about the exercise of the judicial discretion in approving warrants. It is about the oversight part, and I hope that reassures him.
Mr Hayes
I may have been judging the hon. Member for Hove harshly. If the Solicitor General is right that that is the misapprehension, I understand why the hon. Gentleman is making the case he is making. It is essential that we clearly set out the expectations for the exercise of the oversight function, as the Bill does.
Returning to the issue of common sense and what is self-evident, I say to the hon. Gentleman for at least the third time, and possibly the fourth, that there is always debate about how much is on the face of a Bill and how much is reserved either for the common sense of those who do what the Bill asks of them or for the supporting documentation, guidance and so on. We have had that debate a number of times. It is often important that what might appear as “self-evident” or common sense is placed on the face of the Bill, as the hon. and learned Member for Holborn and St Pancras has repeatedly asked me to do.
Investigatory Powers Bill (Eleventh sitting)
Robert Buckland ExcerptsTuesday 26th April 2016
(8 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 April 2016 - (26 Apr 2016)
Keir Starmer
Ms Dorries, you permitted me to stray into discussion of clause 141 and therefore I will be brief on this amendment, because the point that I was making was that the specific operational purposes required under subsection (4) of the clause are still general, and the purpose of these amendments is to rectify that position. The best example of that is amendment 681.
The point that I made last week is that if there is to be movement on clause 141, as I suggest there should be, what we should try to do is to draft a clause that would be workable in practice and that I hope would reflect practice as it is.
I will say no more about it, because, as I say, I strayed into discussing these amendments when I was dealing with clause 138.
The Solicitor General (Robert Buckland)
It is a pleasure, Ms Dorries, to serve once again under your chairmanship.
As the hon. and learned Gentleman says, we echoed some of these arguments last week in relation to bulk interception warrants. I will say two things. First, we respectfully submit that the amendments are unnecessary. There are also some technical deficiencies within them, and I have some concerns about those.
As we know, what we are talking about—this is perhaps my first opportunity to say this—is fragments of initial intelligence. That is what bulk acquisition is all about. It is about taking those fragments and then being able to identify potential subjects of interest that might pose a threat to the UK.
Limiting the examination of data collected under a bulk warrant to circumstances in which an operation or investigation is already under way, or tying a warrant to individual persons or premises, would mean that a bulk acquisition warrant just could not be used in that way, and it almost goes without saying that it would then severely limit the capabilities of the security and intelligence agencies to keep us safe.
Clause 151—helpfully, we have already jumped to clause 141—is also an important clause. It makes it clear that selection for examination may take place only for one or more of the operational purposes specified in the warrant.
Keir Starmer
I, too, went to clause 151, expecting a further safeguard, but all one gets in subsection (2) is the repetition and reference back to clause 141. That is the point that I hope I am consistently making. We do not get a graded safeguard that ups the threshold at each stage; we get a threshold that refers back to the previous threshold.
The Solicitor General
I take the hon. and learned Gentleman’s point; it is one that we understand. Again, however, I must make the point that at the point at which warrants are served in this context, it is not possible to know what part of the data that is being collected will be examined and for what purpose. Therefore, the question of detail is not a question of reluctance on the part of the authorities—it is just about practicability. It is not possible, of course, to anticipate that.
May I just deal with amendment 683? Under the Bill, a warrant will only include the operational purposes for which it may be necessary to examine the data. The Bill makes it clear that that may include all of the possible operational purposes for which data may be selected for examination. The effect of the amendment would be to require all possible operational purposes to be specified on a warrant, regardless of whether they were necessary. I am sure that that is not the intention of the hon. and learned Gentleman, but that was the point that I was making about the amendment perhaps not quite achieving the purpose for which it was tabled.
Having said that, I would argue that in clause 141, in combination with clause 151, we have an adequate and sufficient safeguard to ensure sufficient granularity when applications are made. It will not be good enough for the authorities simply blithely to quote “national security”; there will have to be greater granularity in applications. I would say that that is clear from the Bill, and combined with the code of practice I think there is enough here for hon. Members to be reassured that this process is not a mere rubber-stamp exercise and is a proper and effective safeguard.
The hon. and learned Member for Edinburgh South West made remarks in her interesting speech about the United States experience. It is important that I briefly put on record the important distinction between the United States regime of collecting domestic telephone records, which was pursuant to the Patriot Act—that has now been repealed by Congress—and the particular powers under section 702 of the Foreign Intelligence Surveillance Act 1978, as amended. Those powers are what the US Privacy and Civil Liberties Oversight Board addressed in its reports in July 2014 and more latterly this year.
Those powers to collect the content of electronic communications from targets outside the US are germane to the questions in this debate. As my right hon. Friend the Minister for Security said, the American board clearly found that there was value in and an important role for that particular programme. It is important that we take care to draw distinctions between different functions.
Joanna Cherry
I agree we must take care. The Solicitor General was careful to say that the conclusions he just mentioned were drawn in relation to the gathering of data outwith the United States of America. He would agree that the USA has strict constitutional rules about the gathering of its own citizens’ data, which is what we are concerned with here. It is not just about overseas, but our own citizens’ data.
The Solicitor General
I share that anxious concern, which is why I think we not only have avowal here, but an enhancement of safeguards. There is no doubt about it: the Bill represents a dramatic improvement on blithe reliance on the 1984 Act, to which the hon. and learned Lady correctly referred, and then nothing ever being said or debated in this House or the other place about the extent of those powers and the important judicial safeguards we have here.
Underpinning all that—this is within the code of practice—is the oversight of the commissioner, who will be able to inspect and review and ensure that the powers are not being abused in a way that the hon. and learned Lady and I would find abhorrent. It is always a pleasure to hear a Scot quote the great Unionist Robbie Burns—[Laughter.] As a great patriot, he would have shared the Government’s anxiety to ensure that the security of our citizens is protected in a proportionate and necessary way. I therefore think that the clause strikes the right balance.
Keir Starmer
Granularity is a great word, and increasingly popular. It implies something crunchy and grain-like. I have made this point, but though clause 141(4) says that it is not sufficient to simply say “national security”, it does not say much else, and therein is the nub of the problem that the amendments are intended to correct.
I have made my submissions. I heard what the Minister said and I have listened carefully to the Solicitor General. We have been over the territory. I will not press the amendments at this stage, but I may be minded to at a later stage, because getting this issue right is critically important. It may be better if we try to get it right before that stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
The Solicitor General
I beg to move amendment 615, in clause 143, page 113, line 2, leave out “one or more”.
This amendment is consequential on amendment 616.
The Solicitor General
The amendments are aimed at clarifying that a bulk acquisition warrant can be modified so that all the activities that fall within clause 138(7)(a) which were authorised or required by the warrant cease to be so authorised or required. That clarifies that where a warrant is modified in relation to activity required of a service provider, it can be modified only to end or cease the acquisition of communications data under the warrant and not to make any changes to the scope of that acquisition.
That provides for limited circumstances, such as when a communications service provider helping with giving effect to the warrant goes out of business, where it continues to be necessary and proportionate to examine communications data collected under the warrant. For the avoidance of doubt, in instances where the requirements placed on a service provider need to be amended, a new warrant would be required. It is a limited but important clarification that I hope will reassure hon. Members.
Amendment 615 agreed to.
Question put, That the clause, as amended, stand part of the Bill.
Keir Starmer
I have raised this issue before so I will not take much time on it now. I said previously and heard no contrary position put in the debate that in this chapter dealing with bulk acquisition warrants there is no specific provision for legal professional privilege for journalistic material or for communications with MPs. The Bill contains no guidance on how those categories of material are to be protected, if at all. New clause 15 deals with legal privilege. I have previously made points on the subject and I know the Solicitor General is looking at legal privilege generally. I simply ask that this be taken under the umbrella of consideration of privilege, so that however it is applied throughout the Bill there is consistency of approach that safeguards privilege properly. I do not intend to push the amendment to a vote at this stage.
The Solicitor General
I will briefly reiterate the Government’s position. We believe there is a logical basis for the differentiation at this point, before the examination stage, as it is at the examination stage that the particular sensitivities of the occupations of journalist, lawyer or parliamentarian come into play. We are dealing with an earlier stage.
Keir Starmer
My concern is that acquisition and examination are dealt with in the same warrant, so I think we are dealing with access. It probably does not affect the second point about how it is dealt with generally. The point is that these warrants do provide for examination.
The Solicitor General
There are, in fact, two stages. The code deals with sensitive professions at the examination stage. There are those two important stages, to which I have referred. The other aspect of the debate is when an obviously sensitive piece of information, namely a fact that a person has communicated with a lawyer, becomes privileged is a subject of ongoing discussion. It is more than an interesting point; it is an important point. There is a very respectable argument for saying that although the data might be sensitive, it might not attract LPP, but we need to discuss it further.
I can reassure Members at this stage that the protections for legal professional privilege in the draft bulk communications data code of practice mirror the protections that the divisional court deems appropriate. We are clear that the application of protections at the point of selection for examination is the correct approach. In the context of bulk communications data, we do not think that applying additional safeguards at that stage would be effective or necessary.
Question put, That the clause stand part of the Bill.
Investigatory Powers Bill (Twelfth sitting)
Robert Buckland ExcerptsTuesday 26th April 2016
(8 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 April 2016 - (26 Apr 2016)
Keir Starmer
Having tested the patience of the Committee on the point I was labouring on the last amendment—which I think is important, even if I am alone in that—I can indicate that these and the other amendments following in this chapter are all similar to previous amendments. I will deal with them quickly.
Amendments 698 and 699 deal with the test for the judicial commissioner. If it is helpful, I can indicate to the Solicitor General in advance that, having been round the track on this issue, I am not going to repeat the arguments or press them to a vote, because of the discussions we have been having.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
The Solicitor General
I beg to move amendment 620, in clause 163, page 126, line 6, at end insert—
This drafting amendment is for consistency with clauses 127 and 143.
The Solicitor General
Briefly, these are minor drafting amendments that mirror drafting in an equivalent interception provision in clause 127. The amendment makes no changes to the bulk equipment interference regime itself. It is a minor discrepancy and we want to try to ensure drafting consistency as much as possible. We are mindful that the Committee has attached particular importance to that issue. Here is an instance of the Government making sure that in this example we are doing just as encouraged.
Amendment 620 agreed to.
Amendment made: 621, in clause 163, page 126, line 31, at end insert—
“This is subject to subsection (5).”—(The Solicitor General.)
This drafting amendment is for consistency with clauses 127 and 143
Question put, That the clause, as amended, stand part of the Bill.
Keir Starmer
From memory, the services could not at the moment envisage a circumstance in which they would need it, but they would not want to rule out the possibility that it might arise at a future date.
The Solicitor General
An example could be a group of terrorists who are involved in an explosion and sustain burns. Medical evidence about where they attended—the fact that they had attended a local A&E—could be relevant to that particular operation. That is the sort of category that we are thinking of.
Keir Starmer
That may well be. I listened carefully to the answer that was given—
Keir Starmer
It may well be that it could be dealt with in a more targeted way. As a general proposition, where targeted powers can be used they should be used. That is a theme that goes through the Bill and the code.
The Solicitor General
I can clarify: let us imagine a scenario where there is an unidentified individual or we do not know the identities of the people. We know that an atrocity has taken place, but we do not have names, so targeting is more difficult. It is an exceptional case, but there is that possibility.
Keir Starmer
These are all hypotheticals. I think the services themselves have said that they have not needed such powers yet, and we can speculate as to what the situation might be. However, I accept as a general proposition that the focus ought to be on the threshold test for accessing information. For the record, in relation to adult and child social care, there would be a concern not only for the vulnerable adult and child but among those providing the care, because they will be expressing their opinions in these reports and they would be concerned that that remained confidential. That highlights why we need to work on this position. However, for the time being, I look forward to that work and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
The Solicitor General
I beg to move amendment 629, in clause 186, page 143, line 9, leave out “(urgent cases)”.
This amendment is consequential on amendment 630.
The Solicitor General
The amendments will make it possible for an instrument that makes a major modification to a bulk personal dataset warrant, to add or vary an operational purpose, to be signed by a senior official as a provision for situations in which it is not reasonably practicable for the Secretary of State to sign it. The amendments are very similar to others we have made. Obviously the Secretary of State will make the decision, but in his or her absence an official will be authorised to sign the instrument. I therefore commend the amendment to the Committee.
Amendment 629 agreed to.
Amendment made: 630, in clause 186, page 143, line 10, leave out from beginning to “the” in line 15 and insert—
“( ) If it is not reasonably practicable for an instrument making a major modification to be signed by the Secretary of State, the instrument may be signed by a senior official designated by the Secretary of State for that purpose.
( ) In such a case, the instrument making the modification must contain a statement that—
(a) it is not reasonably practicable for the instrument to be signed by the Secretary of State, and
(b) ”.—(The Solicitor General.)
This amendment enables an instrument making a major modification of a warrant under Part 7 to be signed by a senior official in any case where it is not reasonably practicable for the Secretary of State to sign it.
Question put, That the clause, as amended, stand part of the Bill.
The Solicitor General
I beg to move amendment 631, in clause 192, page 147, line 37, after “that”, insert “—
(a) ”
This amendment is consequential on amendment 632.
The Solicitor General
I will deal as succinctly as possible with the amendments, which I think will gain Members’ support. They will ensure that a direction by the Secretary of State that is approved by a judicial commissioner cannot disapply the prohibition on the disclosure of an intercept warrant or any intercepted material. The clause relates to bulk personal datasets obtained by a security and intelligence agency using a capability for which a warrant or other authorisation was issued or given up under another part of the Bill: for example, via the intercept provisions.
The clause provides that, in such cases, the intelligence agency can apply to the Secretary of State for a direction, which has the effect of applying this part—part 7—to the bulk personal dataset. For example, if an agency intercepts an email that has a bulk personal dataset attached and the agency wants to retain and examine that information as a bulk personal dataset, it can apply for a direction to that effect to the Secretary of State. The judicial commissioner must then approve that before it takes effect.
Subsection (6) as drafted states that it is not possible to disapply clause 48, which excludes material identifiable as intercept, from legal proceedings, unlike schedule 3, which provides exceptions to that exclusion. Therefore, a bulk personal dataset that is acquired by interception will always be subject to those provisions, even if a direction is given to apply the safeguards in part 7. The amendments make it explicit that it is not possible to disapply clauses 49 to 51 in such circumstances, either. The clauses together mean that it is an offence to make unauthorised disclosure of the existence of an intercept warrant or any intercepted material.
The clauses relating to the restrictions around the disclosure of material obtained under interception warrants have already been considered by the Committee. The amendments ensure that the restrictions continue to be mandatory, where applicable, to a bulk personal dataset that is subject to a clause 192 direction. Although without the amendments the Secretary of State could choose not to disapply the restrictions on a case-by-case basis, we believe that it is appropriate that that is mandatory, given that they relate to authorised disclosures and criminal liability for such a disclosure.
The clause also allows the Secretary of State the power to vary directions given under the clause, but as drafted it does not explicitly require judicial commissioner approval of such a variation. We are therefore tidying that up and making it explicit that a double lock of judicial commissioner approval will apply to the varying of a direction as well as the original direction. Therefore, once again we are paying close attention and ensuring that the safeguards on the Bill are robust in every possible respect.
Amendment 631 agreed to.
Amendments made: 632, in clause 192, page 147, line 40, at end insert—
“(b) where sections49 to51 applied in relation to the bulk personal dataset immediately before the giving of the direction, they continue to apply in relation to it with the modification that the reference in section50(6)(a) to the provisions of Part 2 is to be read as including a reference to the provisions of this Part.”
This amendment provides that, where the Secretary of State gives a direction under Clause 192(3) with the effect that Part 7 applies to a bulk personal dataset obtained under a warrant issued under Part 2 of the Bill, the direction must ensure that clauses 49 to 51 of that Part continue to apply in relation to the disclosure of the bulk personal dataset (with a modification to ensure that certain disclosures made in connection with the giving of legal advice about Part 7 are excepted disclosures for the purposes of Clause 49).
Amendment 633, in clause 192, page 148, line 8, at end insert—
‘(10A) Subsections (7) to (9) apply in relation to the variation of a direction under subsection (3) as they apply in relation to the giving of a direction under that subsection.” —(The Solicitor General.)
This amendment provides that a direction under Clause 192(3) may be varied by the Secretary of State only with the approval of a Judicial Commissioner.
Question put, That the clause, as amended, stand part of the Bill.
Investigatory Powers Bill (Ninth sitting)
Robert Buckland ExcerptsThursday 21st April 2016
(8 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 April 2016 - (21 Apr 2016)
Keir Starmer
We have been over the territory of the judicial test, and I do not intend to rehearse the arguments again, other than to say that in circumstances where an equipment interference warrant has been issued by a law enforcement chief—it has not gone through the Secretary of State—it is particularly important for the review by the judicial commissioner to be tight. All the arguments made earlier about the test are reinforced in cases that do not go to the level of the Secretary of State. Any arguments about deference are unpersuasive. There is a particularly powerful argument for tightening up the judicial test throughout the Bill, and I have raised that topic on a number of occasions. There is a particular need for that where a warrant has come about by a different route, without receiving the scrutiny that a warrant signed by the Secretary of State would have.
The Solicitor General (Robert Buckland)
I am grateful to the hon. and learned Gentleman. We need not rehearse the arguments that we looked at in some detail a few days ago, but I will say what I said then: although the Bill covers those points, there is merit in considering the matter carefully, and I shall continue to give it anxious consideration.
The sliding scale approach, to coin a phrase, is clearly relevant. We must remember that the absence of the Secretary of State in the case of the other agencies is not a problem, because we want them to have integrity and operational independence. We must always remember that underlying principle. I am not criticising anyone, but that sometimes gets a bit lost in the debate.
Having said that, the hon. and learned Gentleman’s point is well made about the different considerations that would present themselves to the mind of a commissioner, bearing in mind that the Secretary of State and national security and all those factors are not involved. I need not, perhaps, add more to the debate on that; I simply commend yet another clause that covers the double-lock authorisation process and applies it for the first time to the area of warrantry in question.
Joanna Cherry
I have very little to say, other than that I support the thrust of the argument made by the hon. and learned Member for Holborn and St Pancras; but I also note what the Solicitor General said about giving the matter anxious consideration. I am grateful to him for that, because it is a central concern.
The Solicitor General
I have nothing further to add.
Question put and agreed to.
Clause 97, as amended, accordingly ordered to stand part of the Bill.
Clause 98
Approval of warrants issued in urgent cases
Joanna Cherry
I beg to move amendment 439, in clause 98, page 75, line 25, leave out “considered” and insert
“had reasonable grounds for believing there was an emergency situation posing immediate danger of death or serious physical injury or that the physical security or integrity of the nation was endangered”.
Keir Starmer
Our amendment 440 is modest and would insert the word “immediately”. I need say no more than that.
The Solicitor General
May I deal with the amendments in reverse order? On amendment 440, I am happy to consider amending the relevant draft codes to make it clear that the notification of judicial commissioners should happen as soon as is reasonably practical. That wording is more appropriate than “immediately”, given that it may take some small period of time to draw together the materials that the commissioner would want to review when considering whether to approve the issue of a warrant. On the basis that we might return to this issue at a future date, I invite the hon. and learned Gentleman not to press his amendment.
The amendment tabled by the hon. and learned Member for Edinburgh South West, to which she spoke with admirable brevity, is well understood by the Government, and the arguments remain as they did in our debate on clause 22. We want to create a workable framework, and if we limit the grounds, my concern is that the scenarios and case studies I set out in that debate—the drugs case and the Daesh case—would not be caught. We have a clear definition of “urgency” in paragraphs 41 to 44 of the draft code. The draft code also has a helpful flowchart that clearly sets out the parameters within which those seeking such warrants should operate. For those reasons, I respectfully urge her to withdraw her amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 98 ordered to stand part of the Bill.
Clause 99
Failure to approve warrant issued in urgent case
Keir Starmer
The amendment is minor, in keeping with the amendments that we have already debated on material obtained under warrants that are later cancelled or not authorised. The amendment would tighten the requirements in cases where a judicial commissioner refuses to approve a warrant; the reason for that is self-evident. We have rehearsed this territory to some extent.
The Solicitor General
I resist the amendment. The hon. and learned Gentleman is right that we have considered similar amendments in relation to clause 23 in part 2 of the Bill. With respect, it is not right to fetter the discretion of the judicial commissioners, who are experienced and senior members of the judiciary. They should be allowed to decide such matters on a case-by-case basis. The amendment prompts the questions of what might be meant by “exceptional circumstances” and of who would determine whether the threshold had been met in a given instance. I worry that that would just complicate the process. We are all agreed that commissioners will give each case proper consideration, and the commissioners will seek to serve the clear public interest in ensuring that material that should not be retained is destroyed. Well intentioned though this amendment is, it would add undue complication, and we oppose it for that reason.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 99 ordered to stand part of the Bill.
Clause 100
Items subject to legal privilege
The Solicitor General
Again, I am grateful to the hon. and learned Gentleman. He is right to say that this is a repeat of arguments we had on another part of the Bill. As he has laid out his arguments by adopting his previous submissions, I do likewise on behalf of the Government. Recalling those briefly, my concerns about the dangers of over-definition remain. However, I do not want material that should not be caught by the Bill to be caught by it in any inadvertent way. We are talking about cases where the purpose of a targeted equipment interference or examination warrant is to acquire or examine items that are subject to legal professional privilege. We have additional protections that are a sufficient safeguard and strike that essential balance. For all the reasons I advanced previously, I urge the hon. and learned Gentleman to withdraw the amendment at this stage.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 100 ordered to stand part of the Bill.
Clause 101
Requirements which must be met by warrants
Joanna Cherry
Amendment 275 is a simple amendment to subsection (4), which sets out the matters that a targeted equipment interference warrant must “describe”. The amendment would change that word and require more specificity.
The Solicitor General
I am not sure whether that will make any practical difference, but I am happy to consider the hon. and learned Lady’s amendment.
Joanna Cherry
I am very grateful to the Solicitor General. I leave the other two amendments to the hon. and learned Member for Holborn and St Pancras.
Keir Starmer
Amendments 452 and 453 speak for themselves. Concern has already been expressed about the general nature of the requirements that must be met by warrants; this is a further example under the head of equipment interference warrants. Clause 101(3) sets out in some detail what is required, and the amendments would tighten that up by requiring more precision and more matters to be explicitly stated. They are a version of other amendments tabled to corresponding provisions for other warrants.
The Solicitor General
To deal with the thrust of the hon. and learned Gentleman’s argument, we would say that the amendments are unnecessary because the draft statutory code of practice already requires an application for a targeted warrant to set out what the conduct is and how collateral intrusion is being managed, which is the really important public interest here. That should rightly be in the warrant application itself, and the detailed requirements should be in the statutory code; that was recommendation 5 in the report by David Anderson QC, so we are faithfully following his recommendation.
On the code of practice, the hon. and learned Gentleman will find the requirements under the heading “Necessity and proportionality”, particularly in paragraphs 3.26, 3.27 and 4.10, which deals with collateral intrusion.
I note that amendment 453 is part of this group, so I will speak briefly to that. We have concerns that I have expressed before in other contexts about the problem of the police being asked to exhaust alternative methods even where there is unlikely to be any effect. That is not only wasteful and costly, but could unintentionally lead to further undue intrusion into people’s privacy. For those reasons, I have grave concerns about that amendment.
Byron Davies (Gower) (Con)
Will the Solicitor General accept our plea—I speak as someone who has operated this in a practical situation—that what is being asked in this amendment is completely impossible?
The Solicitor General
I am grateful to my hon. Friend, who speaks with many years of operational experience in the Metropolitan police. When he was a senior officer in that force, he had responsibility for investigations and took his responsibilities extremely seriously. I am grateful to him for his contribution. We have to balance any concerns about a jump to these powers with real-world responsibilities. I want clarity, but also an element of flexibility for those who investigate crime, so that they can get on with the job in an effective way and catch criminals. That is what we all want. I am worried that the amendment, well intentioned though it is, would complicate the process. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras not to press the amendment to a vote.
Joanna Cherry
I beg to ask leave to withdraw the amendment for the time being.
Amendment, by leave, withdrawn.
Clause 101 ordered to stand part of the Bill.
Clause 102
Duration of warrants
Keir Starmer
The amendment relates to modification provisions similar to those in clause 30, which we discussed at some length last week. I will not go over the territory again, but all the arguments I made in relation to modifications under clause 30 apply equally to modifications under clause 105 and I will not take time by going through all the similar points. It is worth observing, however, that clause 104(2) lists in paragraph (a) to (f),
‘“The only modifications which may be made under this section”,
which cover practically all the matters that appear on the requirements of warrants, so it is an interesting use of the word “only”.
There is a substantive issue on which I would like an answer. When we were debating clause 30, I made the point that the test for a modification set out in clause 30(9) is a test of necessity and proportionality that only applies to major modifications, not minor ones. We have dealt with that and I will not go over it again, but it seems to me that the test for a major modification is, quite sensibly, whether it is necessary and whether the conduct authorised by it is proportionate. I was expecting to see in clause 104(4) a version of clause 30(9) and I did not. Perhaps the Solicitor General will explain why.
The Solicitor General
In this context, all modifications are considered major; that is the difference. I hope that helps.
Keir Starmer
Well, no. [Laughter.] I do not mean that disrespectfully, but the test in clause 30(9), which is in relation to major modifications, is whether the modification is necessary and whether it is proportionate. That is a sensible test. I accept that the test in clause 104(4) is in relation to all modifications, but one would expect to see the words “that the modification is necessary”, not
“that the warrant as modified continues to be necessary”.
The Solicitor General
In the context of EI, we are not making the distinction between major and minor, so the effect is that all modifications will be major. If there is a discrepancy, I am happy to look at the language again to make it absolutely clear. I hope that assists the hon. and learned Gentleman.
Keir Starmer
I am grateful for that indication. Otherwise, in relation to modifications, my points are essentially the same as I made on clause 30. I know the Solicitor General has agreed to look at and deal with at least some of the points I made last time; I ask him to take this modifications clause under the same umbrella when he looks at the modification provisions.
The Solicitor General
I will try to deal with this in short order. I am grateful to the hon. and learned Gentleman for the way in which he advanced his argument. It is in that spirit that I adopt the arguments I made previously. I simply make the point that under this clause we are dealing with safeguards that in my view do not undermine the important double lock standard.
I have some concerns about the amendments that relate to the judicial commissioner having to approve the decision to make modifications to EI warrants. The decision will already have been subject to the safeguard, so to require the judicial commissioner to authorise tactical operation day by day—indeed, minute by minute—is not necessary; in fact, it could be operationally damaging. The Government believe that the code makes clear, on the basis of the arguments we had before, the way in which the scope of the warrant needs to be addressed. Reading across, I would say that the safeguards in the code are helpful and clear.
Keir Starmer
One concern is that under subsections (9) and (10) as they stand there is no requirement for modification that touches on MPs or legal privilege to go to a judicial commissioner, which is at variance with the point that the Solicitor General just made.
The Solicitor General
The hon. and learned Gentleman anticipates the point that I was about to make. I am happy to consider whether subsections (9) and (10) need to be strengthened to put it beyond doubt that the double lock will apply in those contexts. I hope that that helps him. I have already made similar points on the thrust of these amendments and there is nothing more that I need to add at this stage other than to respectfully invite him to withdraw his amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 104 ordered to stand part of the Bill.
Clauses 105 to 108 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned.— (Simon Kirby)
Investigatory Powers Bill (Tenth sitting)
Robert Buckland ExcerptsThursday 21st April 2016
(8 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 April 2016 - (21 Apr 2016)
The Solicitor General (Robert Buckland)
On a point of order, Mr Owen. May I add my remarks to yours? We wish my hon. Friend well and hope that he has a swift recovery from his operation.
Clause 109
Implementation of warrants
Gavin Newlands (Paisley and Renfrewshire North) (SNP)
I beg to move amendment 293, in clause 109, page 87, line 39, leave out subsection (3).
This amendment would remove the provision which allows a targeted equipment interference warrant to be served on a person outside the UK for the purpose of requiring that person to take action outside the UK.
Keir Starmer
I will deal with these amendments swiftly. They deal with the reasonable excuse defence and are similar to previous amendments. I foreshadow the amendments to clause 116, which essentially relates to the same issue as clause 114. Those amendments are about a public interest defence, which we have also debated already.
My two points remain. The first is the consistency of the reasonable excuse defence. In some clauses it is there and in others it is not, and I cannot see the logic of when it is in and when it is out. Secondly, the Minister has already agreed that there must be a route for those who want to expose wrongdoing, so that disclosures can be made in the public interest where necessary. I have been pursuing those two points, and they are the same for this provision. I do not need to elaborate further.
The Solicitor General (Robert Buckland)
The hon. and learned Gentleman is absolutely right to refer to arguments previously made. For the record, this morning I omitted to pay my own tribute to our sovereign lady on her 90th birthday, and I wish to add it here. I am sure that colleagues will indulge that observation, and hopefully this next observation too. My right hon. Friend the Minister for Security and I agree that the world is divided between cavaliers and roundheads. We know what side we are on: our hearts lie broken on the battlefield of Naseby—but that is perhaps for another day.
We contend that amendment 650 is unnecessary. Clause 115(2)(b) provides that a disclosure is permitted if it is
“authorised by the person to whom the warrant is…addressed”.
Disclosure can also be authorised by virtue of this clause within the terms of the warrant, which will have been agreed by the person issuing the warrant and by a judicial commissioner. It is much better for an impartial senior judge to take a view on what is reasonable than it is for, say, a junior official or an employee of a telecommunications operator, no matter how diligent they might be; none the less, it is important that such people can raise concerns without fear of prosecution. That is why clause 203, in part 8, provides for an information gateway so that whistleblowers can take their concerns directly to the commissioner without fear of sanction under the Bill.
It is right that the Bill’s provisions reflect the sensitive techniques of the equipment interference agencies and maintain that it will be an offence to disclose the existence of a warrant. It is a well known and well rehearsed argument that the techniques and details of EI capabilities must be protected. The amendments in the round seek to achieve something that I submit is already well catered for in the Bill, and on that basis I ask the hon. and learned Gentleman to withdraw the amendment.
Gavin Newlands
I will not detain the Committee long. I hear what the hon. and learned Gentleman says and broadly agree with it. I rise merely to point out the differences between the two amendments before us. The SNP’s amendment would insert an additional subsection that adds the additional defence and leaves subsection (3) in, whereas the Labour amendment removes that.
The Solicitor General
I am grateful to the hon. and learned Member for Holborn and St Pancras. We are familiar with the arguments and our response is that the information gateway, which allows people to take concerns directly to the Investigatory Powers Commissioner, caters for the public interest. For that reason I urge him to withdraw the amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 116 ordered to stand part of the Bill.
Clauses 117 and 118 ordered to stand part of the Bill.
Clause 119
Bulk interception warrants
Keir Starmer
The hon. and learned Lady should not read into my observations any criticism of the approach that she has taken, or any suggestion that she or her party are seeking to reduce the capabilities of the security and intelligence services. I know her background and the work that she has done, and I know that would not be her position. I do not intend to impute that it is. I am keen to speak only for myself and my party.
The Bill brings a legal framework and definition to the powers, and a set of safeguards to go with the exercise of those powers. I think that is important. If the powers are to be exercised, I would rather they were exercised within a proper legal framework, with more effective safeguards than under the current framework. I think that is the only real difference of approach between us.
What we all have to bear in mind is not whether we personally have been persuaded by the case that the powers are justified, because we all have different experiences and backgrounds—I worked with the security and intelligence services for five years on very serious terrorist cases—but whether members of the public can have confidence that they are. That is why we have been pressing for further consideration and independent assessment of the operational case.
Clause 121 deals with the first part of the safeguards on the exercise of the bulk powers—the test of necessity and proportionality. The clause is in familiar form. Subsection (1) states that the Secretary of State has to consider
“that the main purpose of the warrant is one or more of the following…the interception of overseas-related communications, and…the obtaining of secondary data”
and then that
“the warrant is necessary…in the interests of national security,”
or on
“grounds falling within subsection (2)”
Subsection (2) adds that the warrant can be
“for the purpose of preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom”.
I will not test the Committee’s patience by going over the same ground about the economic wellbeing of the United Kingdom being relevant to the interests of national security. The point that I have made consistently on that applies just as much to clause 121, but I will not repeat it.
It is important to appreciate that the necessity of proportionality test set out in subsections (1)(b) and (2) has very broad criteria. When the Secretary of State is considering a warrant, clause 121(1)(d) requires him or her to consider that
“each of the specified operational purposes…is a purpose for which the examination of intercepted content or secondary data obtained under the warrant is or may be necessary”.
On the face of it, that provides some comfort. That is the examination part of the exercise, and it is important because it recognises the distinction that I have made between collating or bringing together data and accessing it. It relates to accessing, because it involves
“a purpose for which…examination…under the warrant is or may be necessary”,
which brings us into the territory of what the test is for examining the data that has been collected. As I said, the Bill states that the Secretary of State will consider
“each of the specified operational purposes”.
However, in clause 125(4), we get into a circular argument. It states:
“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 121(1)(b) or (2)”,
the two provisions to which I have just referred. It is not enough to say, “It is necessary for the operational purposes of national security or preventing serious crime,” or, “It is in our economic interests.” That is not enough,
“but the purposes may still be general purposes.”
That is all there is on the subject in the Bill. At the vital stage when we move from hoovering up or collecting communications to accessing them, the test of necessity and proportionality bites on something that is not quite as general as national security, which would not be much of a test at all, but could be not much more than that—“general purposes”. That is a cause for concern, which has prompted our amendments to tighten it up.
In crafting the amendments, we have had one eye on the code. I refer to paragraph 6.19, which suggests that some detail should be put in the application, stating:
“Each application, a copy of which must be retained by the applicant, should contain the following information:
Background to the operation in question:
Description of the communications to be intercepted and/or from which secondary data will be obtained, details of any CSP(s) and an assessment of the feasibility of the operation…
Description of the conduct to be authorised, which must be restricted to the interception of overseas-related communications…
The operational purposes for which the content and secondary data may be selected”.
What is envisaged in the code includes:
“An explanation of why the interception is considered to be necessary…A consideration of why the conduct to be authorised by the warrant is proportionate…An assurance that intercepted content and secondary data will be selected for examination only so far as it is necessary”
under section 134. Paragraph 6.26 of the code adds further guidance on necessity and suggests, at the bottom of page 43:
“For example, if a bulk interception warrant is issued in the interests of national security and for the purpose of preventing or detecting serious crime, every specified operational purpose on that warrant must be necessary for one…of these two broader purposes.”
So the code operates on the basis that the detail will be provided in the application, even though it is not necessary under the Bill. I would therefore have thought it would be hard for the Minister and the Government to resist the amendments, which would simply lift the requirement to include the detail in the application from the code and put it into the Bill, so that we and the public could be assured that the test would be stricter than the combined effect of clauses 121 and 125(4).
The Solicitor General
I have been considering the hon. and learned Gentleman’s point about clause 125. Let me reassure him that the purpose of subsection (4) is to create, in the modern phrase, a greater granularity of approach when it comes to the basis of the application. That provision is in the Bill to prevent the authorities from just relying on generalities; the point is for them to go into greater specificity. I hope that gives the hon. and learned Gentleman some reassurance.
Keir Starmer
I am grateful for that indication, but I suppose it invites the comment that if that is the intention, it would surely be better to amend clause 125(4) to make it clear that the application must be specific, as set out in amendment 653, which would require the specific operation to be referred to. The amendment would take the spirit of the requirement in the code to set out the specific operational purposes and put it into the Bill so that everyone can see it.
Perhaps I am not making my point clearly enough. If in the end the necessity and proportionality requirements in the Bill for the bulk power and for access are no different, then no real distinction is being made between the two. I think a real distinction should be made in the Bill, to make it clear to everyone that at the point when material is to be accessed or examined, there is a higher threshold and a higher requirement to be specific. That would reflect what is in the code, and that is the spirit in which we tabled the amendments.
Keir Starmer
Amendment 664 is very simple and straightforward. In the light of our exchange, I would simply like to put it on the table, as it were, to show the spirit in which it has been introduced. I will not press it to a vote, because this is a matter that we may be able to discuss further.
The Solicitor General
The hon. and learned Gentleman remembers the intervention I made earlier to help short-circuit it. We think it conveys that granularity, but we are prepared to engage in ongoing dialogue on that issue. I am grateful to him.
Amendment 665 would require that bulk interception warrants “must” specify all operational purposes. In the Government’s drafting, the word is “may”. I am sympathetic to the amendment, but I do not think it is necessary. The purpose of the clause is simply to clarify that a bulk interception warrant may include multiple operational purposes. That is necessary because overseas-related communications, which are relevant to multiple operational purposes, will necessarily be transmitted and intercepted together under the authority of a bulk interception warrant. In the majority of cases, it will therefore be necessary for bulk interception warrants to specify the full range of operational purposes in use at a particular time. I submit that the Bill is sufficiently clear on that point without the amendment. On that basis, I invite the hon. and leaned Gentleman to withdraw it.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Keir Starmer
These are familiar amendments to the familiar modification clause, which is similar to the other modification clauses. They are intended to serve the same purpose, which is to clarify, tighten, better define and regulate the modification process.
In light of the ongoing discussions about modifications in general, I take it that all the modification provisions come within the same further consideration that I know the Government are giving to modifications, and I will not say anything more about it. However, I cannot resist saying that subsection (6) perhaps gives an example of how one could achieve approval by judicial commissioners of all major modifications.
It is interesting that subsection (6) is markedly different to the provision in clause 30. In other words, some thought has been given by whoever drafted clause 128 to how one gets major modifications back through the judicial commissioner, but that was not a technique deployed in clause 30. I simply point that out because it perhaps gives further strength to my argument that that is the correct way of dealing with these modifications, not only in this clause but in all clauses, and to similar effect. However, as I have said, we have rehearsed these discussions and I will not add to them on modification.
The Solicitor General
I listened to the hon. and learned Gentleman’s last point with interest. He is right about our general approach to this area. What I would say in response to his proper analysis is that I think there are some technical deficiencies in the wording of amendments 667 and 685. I am just concerned that there is a lack of clarity, but that is part of what is ongoing. On that basis, I hear what he says and I am grateful to him.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Solicitor General
As the hon. and learned Gentleman’s arguments are the same, my arguments, as he anticipates, are the same. Bearing in mind the sensitive nature of these matters, we do not want decisions to be rushed and, accordingly, we resist the amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
The Solicitor General
Again, we note that the amendments are similar to previous amendments. We still say that they are unnecessary. The clauses already provide safeguards so that any bulk warrant may be implemented only to the extent required for the purpose for which the warrant was issued. For example, in relation to bulk interception in clause 119(4) and (5), a warrant may only authorise conduct that is described in the warrant or conduct that
“it is necessary to undertake in order to do what is expressly authorised or required by the warrant”.
That clearly sets out the scope of the authorised conduct. Well intentioned though the amendments are, we submit that they are unnecessary.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Keir Starmer
These provisions deal with legal privilege, which we have dealt with on a number of occasions. I will not repeat the points I have made, but one concern I had about the previous clauses that dealt with legal privilege, among others, was that they distinguished between a situation in which the purpose was to obtain the legally privileged material and a situation in which the relevant communication likely to be included was subject to legal privilege. In other words, there was a situation in which the legally privileged material was deliberately targeted and a situation in which there was no intention deliberately to target legally privileged material, but it was accepted that what was targeted was likely to include such material.
In clause 25, the first time we looked at the matter, the distinction was important because the higher test in the Bill—exceptional and compelling circumstances—applied only to the situation in which legally privileged material was purposely targeted, and that test did not apply where it was not being targeted, but it might none the less be picked up because the items targeted would be likely to include material subject to legal privilege. I was uncomfortable with that distinction and I made my submissions at the time.
Curiously—this is understandable; it is not a criticism of different drafting hands in different parts of the Bill—when we get to clause 135, we have a version of the legal privilege provision that sets out in subsection (1)(b)(i) and (ii) both the purpose being to intercept or to obtain legally privileged material and the situation in which the use of the relevant criteria is likely to identify such items, so it sweeps up the targeted and the incidental, and then subjects both to the higher test.
For all the reasons I have set out, I do not think even that is enough, but when the Solicitor General looks again at all the provisions on legal privilege, I ask him to note that there is not even consistency through the statute, perhaps because it was differently drafted at different times. I cannot work out why under clause 25 incidental legally privileged material is not subject to the special test, but under clause 135 it is. I want to put that on the table and invite the Solicitor General to bear it in mind if he gives further consideration to how legally privileged material will be dealt with consistently through the Bill.
The Solicitor General
I thank the hon. and learned Gentleman for his remarks. First, we have the exceptional and compelling circumstances test in subsection (3)(b), which is consistent. Also, I think there is a slight misunderstanding about what we are dealing with, because the amendments seem to be predicated on the basis that targeted interception and equipment interference and then their bulk equivalents can be directly equated, but they cannot.
We have safeguards in place that we would say are strong. We are having a debate about that; I entirely concede that point. We are having a debate about items subject to legal profession privileges in circumstances where content collected under a bulk interception or equipment interference warrant is being selected for examination. That is the key stage. Before that, we are dealing with the stage of acquisition, not examination.
Keir Starmer
I am not sure that the Solicitor General is right; if he is, I apologise. This is a safeguard for a bulk warrant that allows for both gathering and access. In other words, the whole point—I go back to the beginning of part 6 of the Bill—is for a scheme that provides for the obtaining of interceptions on a bulk basis and their examination. They are dealt with in part 6. The warrants that are referred to would include an examination warrant.
The Solicitor General
May I correct myself? The hon. and learned Gentleman is right. I think I used the word “acquisition”. What I meant is that we are talking about when content collected under the terms of part 6, through an interception or equipment interference warrant, is being selected. The stage point about selection for examination is still important.
When content is being selected for examination for the purpose of identifying items subject to legal privilege, or selections such as under the distinction that we have discussed, clause 135, relating to the bulk interception provisions, is the relevant clause, together with clause 171, which deals with equipment interference provisions. That action requires approval from a senior official in the warrant granting department, only on the basis that they are satisfied that there are specific safeguards in place for the handling, retention, use and destruction of items that are subject to legal privilege. In addition, in circumstances when selection for examination is taking place for the purpose of identifying items subject to legal privilege, the senior official must be satisfied that the exceptional and compelling circumstances test that we have discussed is applicable. Furthermore, when an item that is subject to legal privilege is intercepted under a bulk interception warrant and is then retained following its examination, the investigatory powers commissioner must be informed of course.
My point about collection, and I think the hon. and learned Gentleman gets it, is that meaningful safeguards must be applied at that key point, because one does not know what one is getting. That is the wording, and that is why there is that difference in clause 135.
Keir Starmer
I intervene only to say that I accept that it is a necessary evil of bulk powers that otherwise protected information will come within the bulk power at the point of retention, for want of a better word. Safeguards for MPs, for journalists and their sources, for constituents and for clients bite at the later examination or access point.
The Solicitor General
I am extremely grateful to the hon. and learned Gentleman. A lot of the material that is collected will never be examined. The key point is the next stage.
Briefly, the other amendments relate to the arguments about legal professional privilege, and the question whether there are circumstances in which material would not be covered by the iniquity exemption but would be of interest. We have discussed that point before, and I draw my remarks to a close on the same terms that we have discussed previously.
Keir Starmer
In the circumstances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question put, That the clause stand part of the Bill.
Investigatory Powers Bill (Eighth sitting)
Robert Buckland ExcerptsTuesday 19th April 2016
(8 years ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 April 2016 - (19 Apr 2016)
Joanna Cherry
I think I can take this in fairly short compass. The clause deals with the lawfulness of conduct authorised by this part of the Bill. The amendment would delete clause 72(2)(b), the effect of which would be that conduct would have to remain unlawful if it could not be justified. As it is currently worded, the clause allows an exception to that principle, and that is not an appropriate exception. Conduct is either lawful or unlawful. If it is unlawful, it should be characterised as such and should not be justified. Strictly, if the amendment were to be passed, subsection (3) would have to be left out as well, for tidying-up purposes.
The Solicitor General (Robert Buckland)
May I reassure the hon. and learned Lady that the provisions relating to lawfulness of conduct authorised by part 3 of the Bill replicate those that currently apply in the Regulation of Investigatory Powers Act 2000, and the Bill goes no further in providing indemnity from civil liability for conduct incidental to or reasonably undertaken in connection with a communications data authorisation? The clause is drafted to ensure that a person who engages in conduct only in connection with an authorisation cannot be subject to civil liability unless that activity could itself have been authorised separately under a relevant power. It must follow that the removal of that provision would mean that a person who was acting lawfully under an authorisation that had properly been granted under the Bill would be at risk of civil liability if some incidental or reasonably connected conduct were not expressly covered by the authorisation.
I can see the thrust of the hon. and learned Lady’s argument, but I hope that I have reassured her that the Bill does not go any further than the status quo. For that reason, I urge her to withdraw the amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment for the time being.
Amendment, by leave, withdrawn.
Clause 72 ordered to stand part of the Bill.
Clause 73 ordered to stand part of the Bill.
Clause 74
Certain transfer and agency arrangements with public authorities
Question proposed, That the clause stand part of the Bill.
Christian Matheson (City of Chester) (Lab)
I am delighted to see you back in the Chair, Ms Dorries, as I break my couple of sessions’ silence; it is always very reassuring. I certainly do not wish to keep the Committee here all night, but I will reiterate a point that I made earlier in our considerations, and that relates to the retention of certain data. As my hon. and learned Friend the Member for Holborn and St Pancras pointed out, we understand the need for data retention. However, on looking at the Bill, I am still not entirely satisfied that the Government have taken into account the need for additional security for data retention.
I look to the Minister for reassurance that, when telecommunications and internet providers and suchlike are obliged to retain data, there is a consequent obligation on them to maintain it securely. We know that several such providers have problems with internet security: we saw that with the TalkTalk hack, and we believe another large provider has been hacked recently. Those attacks were on personal data; the Solicitor General and I have had exchanges in this room about the potential for charging them as theft—about whether the sanctions against somebody who committed that offence would be contained in existing legislation.
This part of the Bill needs to look at obliging or maintaining a minimum acceptable level of security, to provide security and privacy for people whose data may have been accepted. I realise that it might not necessarily be covered in detail in the new clause, but now might be a good time for the Ministers to consider whether they believe internet security and the security of personal data held under the terms of clause 79 should be considered in the Bill. Do they believe guidance should be given to telecommunications providers to maintain that security, or do they feel that it is not relevant and that they are quite satisfied with the status quo? I must say that I am not. Notwithstanding the need for the retention of individual data, as described so eloquently by my hon. and learned Friend, it remains a major concern of mine that individual privacy and data are at risk: it puts a question mark over the whole clause and over the areas we are discussing.
The Solicitor General
I am grateful to hon. Members for a wide-ranging debate. I would first like to reiterate on behalf of the Government the position adopted by the Joint Committee on the draft Investigatory Powers Bill, which quite clearly indicated its conclusion that the case was made for a retention period of up to 12 months for relevant communications data. In the report from David Anderson QC, “A Question of Trust”, recommendation 14 is:
“The Home Secretary should be able by Notice (as under DRIPA 2014 s1 and CTSA 2015 s21) to require service providers to retain relevant communications data for periods of up to a year”.
There we have it: the Government are acting upon the specific endorsement of an independent reviewer and a Joint Committee of this House. There is an element of the waving of the proverbial shroud when it comes to the retention of data, because the word “relevant”, which is contained in the second line of clause 78(1), is the governing word here. It is very important to remember that this is not carte blanche for the Secretary of State to authorise communications service providers to retain everything for 12 months. That is not the case. Where there is no case of necessity and proportionality for a 12-month period, a shorter period must be adhered to. Indeed, if the material is not relevant, it falls outwith the ambit of any such authorisation.
I reassure the hon. Member for City of Chester, who makes quite proper points about the integrity of data, that he is right to make them. That issue affects all those in this room and beyond. He is also right to allude to the criminal law. I reassure him that communications service providers have to comply with the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, which together contain those requirements that the data is appropriately secured. When he has the time—which I am sure is as precious to him as it is to the rest of us—chapter 16 of the draft communications code of practice contains an entire set of provisions relating to the security, integrity and, indeed, destruction of retained data, which very much underpin the principles of why CSPs have to operate and will give him the reassurance that he properly seeks about the position with regard to individual data and people’s privacy.
Data retention legislation has existed in this country since the Anti-terrorism, Crime and Security Act 2001, which allowed the Secretary of State to enter into voluntary agreements with telecommunications operators so that they could retain data that otherwise would be deleted. The Data Retention (EC Directive) Regulations 2007 were the first piece of data retention legislation that provided for the Secretary of State to require the retention of such data. We currently have DRIPA 2014 and the data retention regulations of that year. We hope to replace those with the provisions in the Bill. A very important point is that there is nothing new about these proposals. Our data retention legislation has always had the Secretary of State involved in the process and there are very good reasons for that. It has worked successfully until now. As I have indicated, it has been recommended to us by David Anderson.
The amendments that have been tabled seek to drive a coach and horses through all of that. There is a simple and blindingly obvious reason why we wish to maintain the system of data retention. For example, when a crime happens or a child goes missing, it is impossible to know in advance which data would be relevant in any subsequent investigation. It is therefore important that we require the retention of all relevant communications data that matches a certain description wherever it is necessary and important. Because it is impossible to know which data will be the most relevant in advance of any crime, it is impossible to know whether a specific piece of data will be of value to MI5 in locating a terrorist, for example, or to the National Crime Agency in identifying a paedophile, or for any other legitimate purpose. For that reason it does not make sense for those authorities to apply for retention warrants individually. What makes sense is for the requirement of all relevant public authorities to be considered together. The person best placed to do that is the Secretary of State. Public authorities set out their requirements for data retention to the Home Office and they are then carefully considered. As they usually overlap, the Secretary of State is able to identify the specific telecommunications operators and specific data types that it is necessary and proportionate to make subject to data retention notices. As the full costs of data retention are covered by the Secretary of State, only he or she can decide whether or not the benefits of data retention are proportionate to the costs.
There has been some discussion about cost again today. The £170 million figure is based on the cost of our anticipated implementation, which takes into account data that is already obtained under existing legislation. We noted the evidence of BT when it talked about the costs being dictated by its implementation approach, and we continue to discuss implementation with those communication service providers likely to be inspected. Whatever the final cost, however, the important underwriting by the Government is a vital factor in giving reassurance to the industry, not only on the practicability of these measures, but on the importance therefore of involving the Secretary of State.
My worry is that if we went down the road proposed by the amendments, we would end up with a rather confused system that would not allow for the overall benefits of retaining a particular type of data, because the judicial commissioner would only ever be able to consider the benefits to the particular public authority applying for a warrant. It would therefore be impossible to judge the overall necessity and proportionality of requiring a particular company to retain a particular dataset.
We have heard about new clause 10 and its provisions. Given that it is impossible to predict in advance what data would need to be retained, this approach relies on data being retained only after a crime has been committed and/or an investigation has begun. Preservation only works if the data are there to preserve and it is of limited benefit without an existing retention scheme. Without data retention, data protection rules require that the data that are no longer needed for business purposes must be deleted. Without data retention, the data that are needed would not exist. Therefore, the regime of warrantry—the double lock, indeed the proposals put forward by Opposition Members—none of it would matter, because the material would not be there. That is particularly relevant when it comes to the increasing move of criminals and their ilk away from conventional telecommunications to the internet and internet connections.
A number of reports published by the EU Commission show the value of communications data and why the concept of data preservation, as envisaged in new clause 10, is not a viable alternative. In a Europe-wide investigation into online child sexual exploitation, of the 371 suspects identified here in the UK, 240 cases were investigated and 121 arrests or convictions were then possible. Of the 377 suspects in Germany, which does not have a data retention regime, only seven could be investigated and no arrests were made.
I have explained why the existing data retention regime that the Bill replicates is the appropriate model. May I deal with the change proposed by a set of amendments that involve changing the word “may” to “must” in clause 78(2)? That would require a data retention notice to cover certain issues. I am sympathetic to the aim of the amendment, because I am in favour of specific requirements, but the amendment is misconceived because subsection (7) already requires that a retention notice must specify the operator to whom it relates, the data which are to be retained, the period of retention, the requirements and restrictions imposed by the notice, and information on costs. Subsection (2) sets out the scope of what a notice may require and subsection (7) requires that the notice must make clear what is required. The two subsections are therefore aimed at different things.
The effect of this amendment would be to require a notice to cover issues that it might not have any reason to cover. For example, a retention notice may
“make different provision for different purposes”.
With respect, it therefore does not make sense to say it must make different provision for different purposes, because a notice may not relate to those different purposes. I would argue that there is therefore nothing to be gained by moving these amendments. That is all I wish to say, but for those reasons I urge hon. Members to withdraw the amendments.
Gavin Newlands
I will not detain the Committee for too long; these issues have already largely been addressed. Amendments 304 and 305 seek to remove paragraphs (d) and (e) from clause 78(2). In a Bill replete with vagueness, those two subsections stand out as being particularly vague. The new clause that I will come to in a moment would require a data retention notice—or warrant, as we would wish—to be issued only for a specific investigative or operational purpose. The SNP has tabled amendments that will bring greater clarity to when and why a warrant would be issued.
As we know, communications data are defined as data that would be used to identify, or assist in identifying, the who, where and how. However, instead of allowing a blanket surveillance approach that treats everyone as a suspect, the amendments would allow the police to apply to a judicial commissioner for targeted retention warrants, in which data are required for the purposes of a specific investigation into serious crime, or for the purpose of preventing death or injury. I trust that these amendments are acceptable to the Government.
The Solicitor General
I rise to address the concerns of the hon. Gentleman. It is good to hear from him; I should have said that during the last group. He has made the point about his concerns of vagueness. However, I would argue that it is very important that a notice can have a degree of flexibility within it, because a single telecommunications operator may provide a number of different communications services, such as mobile telephony and internet access. However, there may be different complexities and sensitivities about the different types of communications data that are generated by those services. Considerable preliminary work is carried out between the Government and telecoms operators in advance of the service of a retention notice. That covers a number of issues, including the type of data that will be retained, the complexities of the operator’s systems, and the relevant security requirements. Flexibility is needed to ensure that the notice can appropriately reflect those issues, and that it imposes the minimum requirements necessary to meet the operational requirements.
What we are counter-intuitively getting at is to make sure that there is necessary give and take within the system to prevent what the hon. Gentleman and I would regard as an overweening approach from the Secretary of State, which would impede the ability of communications service providers to carry out their operations. For that reason, I respectfully urge him to withdraw the amendment.
Gavin Newlands
I hear what the Solicitor General has said, but I do not wholly agree with him. I reserve the right to bring this back at a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Solicitor General
Amendment 306 is tabled, quite properly, to tease out from the Government the more detailed reasoning behind the important statement made by the Home Secretary on Second Reading. The hon. and learned Lady is quite right to refer to that statement. I once again reiterate the Government’s position that we will not be requiring the retention of third party data through these provisions.
The question is how best to achieve that; therein lies the tension. Attractive though the approach advanced by the hon. and learned Lady might be, there are some drafting issues and problems about legal certainty, which mean that putting those provisions in the Bill with suitable detail is problematic.
One of the main functions of the Bill—and one of my desiderata—is to ensure that it is resilient and stands the test of time. My concern is that if we end up with a definition that is too technologically neutral, it will either fail the test of time in this place, or be subject to challenge. As a Law Officer, legal uncertainty is something I have to take very seriously when considering how legislation is presented. That is why I commend the detailed provisions within the draft code of practice on third party data—paragraphs 2.68 to 2.72—that the hon. and learned Lady referred to. That is not only an explicit reiteration of our commitment but the sort of detail needed for those operating the provisions, which could not be properly put in the Bill.
It is generally well understood what third party data are, but perhaps I should briefly explain the important areas of detail that could not be covered on Second Reading. Where one communications service provider is able to see the communications data in relation to applications or services that run over their network, but does not process that communications data in any way to route the communication across the network, then that is regarded as third party data. For example, an email provider, such as Yahoo or Gmail, knows that a certain internet access service, such as BT Internet, was used to send email, but that fact is not needed or used to send it. So it is in everybody’s interest, not least that of the service providers themselves, that there is sufficient clarity about the data that can be retained under the provisions. As I have said, I think the code of practice is the right vehicle for this. It is also the appropriate vehicle for ensuring that there can be a sufficiently detailed definition of third party data for the reasons I have outlined. In those circumstances, I respectfully ask the hon. Lady to consider withdrawing her amendment.
Joanna Cherry
I am not happy about withdrawing the amendment in the absence of elaboration of what the Solicitor General means by drafting issues and problems of legal certainty. I am not clear at the moment why we cannot have both the amendment and the further elaboration that will be provided in the codes of practice.
Amendment proposed to amendment 306: (a), leave out “notice” and insert “warrant”.—(Gavin Newlands.)
Question put, That the amendment be made.
Gavin Newlands
The SNP has tabled the amendments to provide for clear, appropriate and limited grounds on which data retention warrants may be issued. The amendments require that the data to be retained are specified and that organisations served with warrants to retain communications data should be identified rather than merely described.
Amendments 315 and 317 affirm that organisations that have been served a notice or warrant to retain the communications of their customers are properly and explicitly identified. The term “description of operators” is far too vague and we urge that it is changed to “or operators”. Amendment 328 ensures that those organisations are defined and named before a retention notice can be issued. Amendment 338 removes the possibility of the Home Secretary being able merely to describe the telecommunications operators that she wants to target. Amendments 361, 374 and 375 provide the basis for a concrete description to be included when there is any variation of a notice.
The amendments attempt to bring to the Bill some clarity, which is sadly lacking. It is not good enough that the Home Secretary can sign a notice that merely describes who is impinged on or directly affected by these intrusive powers, because that approach opens up the space for the powers to be abused. We need to act to ensure that, as much as possible, we operate a targeted approach.
The Solicitor General
I understand the purpose behind the amendment in that, in the opinion of the hon. Member for Paisley and Renfrewshire North, it would ensure greater specificity in the giving of notices. However, I shall give a brief example of what a “description of operators” might be. With this provision we would have been able to give the same retention notice to all wi-fi providers supplying wi-fi to the Olympic park in London during the 2012 Olympics. In these circumstances the operators are providing precisely the same kind of communications service and the data required to be retained are the same. Whether a notice relates to a description of operators or to a single operator, it can only contain what the Bill’s provisions allow and the Secretary of State must consult with the operators to which it relates. Operators also have the opportunity to refer the notice back to him or her in relation to any aspect of it. Therefore, on that basis, I invite the hon. Gentleman to withdraw his amendment.
Gavin Newlands
I am content to withdraw the amendments at this stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Gavin Newlands
This is the first speech I have made in this place that has required an intermission. It has been suggested that I start from the beginning as I cannot remember where I had got to. I am nothing but a crowd pleaser, Ms Dorries, but I have found the place where I left off, so I shall continue.
I was saying that the question whether the Bill is in accordance with the law is up for debate. If this part is left unchanged, Liberty and others suggest that it will be in conflict with human rights law, including breaching the EU charter of fundamental rights and freedoms. In July 2015, the High Court upheld its challenge and struck down sections 1 and 2 of the Data Retention and Investigatory Powers Act 2014, finding them incompatible with the British public’s right to respect for private life and communications, and protection of personal data under articles 7 and 8 of the EU charter of fundamental rights.
In addition, we should be mindful that the challenge against DRIPA is ongoing and that the outcome will have an impact on whether this part of the Bill is lawful, although I suspect not. On that basis, I question whether ICRs will do the job the Government intend them to do. The Home Office has become entrenched with regard to ICRs and its fixation with them is clouding its ability not only to look at alternatives, but to assess whether ICRs are proportionate, necessary or in accordance with the law. The SNP believes that ICRs fail those three basic assessments.
I want to quote an unlikely ally, who, in 2009, said in Committee:
“Our consideration of the regulations comes against the backdrop of an increasingly interventionist approach by the Government into all of our lives, seemingly taking the maxim ‘need to know’ to mean that they need to know everything. Certainly, we need to know what the Government’s intentions are in relation to the creation of a new central database, which would create a central store of our electronic communications.”—[Official Report, Fourth Delegated Legislation Committee, 16 March 2009; c. 6.]
That ally was none other than the right hon. Member for Old Bexley and Sidcup (James Brokenshire), now Minister for Immigration at the Home Office, speaking in a Delegated Legislation Committee on an EC directive with very similar provisions to parts of this Bill. That statutory instrument was passed by the House, but notable opponents included Members who are now Scottish Secretary, Home Secretary and Minister for Security—the Minister in charge of this Bill.
We in the SNP are mindful of the evidence that has been presented and submitted to the Committee, but it is our opinion, backed up by case law, that the power to retain ICRs is incompatible with the right to privacy and the protection of personal data, and I urge hon. Members to amend the Bill and ask the Government to think again.
The Solicitor General
I am grateful to hon. Members for this important debate, which, although it relates to an amendment, inevitably strayed into what is, in effect, the stand part debate on communications data.
The hon. Member for Paisley and Renfrewshire North set out his case comprehensively, but his arguments relate to measures and proposals that are not before the Committee. We have moved a long way from 2009, and certainly from 2012, when the original draft Bill was considered by a predecessor Joint Committee. We are not in the situation where the Government will hold a centralised database. That sort of measure was rightly opposed by my right hon. Friend the Minister for Immigration and other of my hon. Friends at that time, because we are naturally suspicious of an organ of Government directly blanket-holding such data.
That is why this provision is not remotely like that. It does not contain anything like the provisions that the hon. Gentleman rightly cautions against, most importantly because the retention of that data is not in the hands of Government. That arm’s length approach is a key difference, which I am afraid undermines all the seeming quality of his argument.
Gavin Newlands
Will the series of private databases under the Bill be any safer from hacking than a central Government database?
The Solicitor General
The hon. Gentleman makes a proper point about security. This, in respect of the code of practice and in collaboration with the industry, will be at the forefront of everybody’s mind. What is important is that the Government do not have a pick-and-mix or help yourself avenue within which they can mine data for their own capricious purposes.
The framework of the Bill quite properly severely circumscribes the circumstances within which the Government can seek access to that material. Most importantly, when it comes to content, the warrantry system—the world-leading double lock system we are proposing—will apply. An internet connection record is not content; it is a record of an event that will be held by that telecommunications operator. It relates to the fact of whether or not a customer has connected to the internet in a particular way. If it goes further into content, the warrantry provisions will apply. It is important to remember that framework when determining, and describing and putting into context, what we are talking about. The Committee deserves better than indiscriminate shroud-waving about prospects and concerns that simply do not arise from the measures in the Bill.
The hon. Gentleman quite properly raised the Danish experience. The Danish Government and authorities are in regular conversation with the United Kingdom Government. That dialogue goes on because they are naturally very interested to see how our model develops, although there are important differences that should be set out briefly. The Danish legislation was not technology neutral, unlike these proposals, because it specified two options that proved unworkable. We work with operators case by case so that the best option for their network at the appropriate time will be determined. The Bill builds on existing data retention requirements, such as the retention of data necessary to resolve IP addresses, which regime already exists under the Counter-Terrorism and Security Act 2015. The full cost recovery underpinning by the Government means that there is no incentive for communications service providers to cut corners, as I am afraid happened in Denmark. There are important differences between the two.
The hon. Gentleman rightly talks about IPV6. Although it is a great aim and something that all of us who have an interest in this area will have considered carefully, it still is, with the best will in the world, a way away, I am afraid. It will take a long time for all service providers to implement in full, and until then, there will be both types of system. Even with IPV6, CSPs may choose to implement address sharing or network address translation, meaning that it is not the guaranteed solution that perhaps has been suggested. Servers who host illegal material are much less likely to move to that system, meaning that, in practice, IPV4 may well remain with us. We therefore have to act in the interim, because, as has been said, the drift away from what I have called conventional telecommunications to the internet carries on whether we like it or not. We have to face up to the world as it is, rather than the world as we would love it to be, and therefore take into account the fact that we are in danger of being unable to detect criminality and terrorism.
Joanna Cherry
The Solicitor General says we have to face up to the world as it is. Why is it, then, that no other democratic nation in the world is implementing legislation of this sort?
The Solicitor General
The hon. and learned Lady has asked that question before, and I have said to her before that somebody has to step up, try it and make that change. I am proud that the United Kingdom is prepared to do that, as we have done it in so many ways.
Joanna Cherry
Is the Solicitor General aware that it is not that other countries have not looked at the problem? They have looked at the problem and decided that this is not the way to solve it.
The Solicitor General
I am afraid I do not agree with the hon. and learned Lady. What they have looked at is the sort of centralised, governmental-based database that all of us have quite properly rejected. They are looking with interest to see how this particular proposal develops, bearing in mind that it has now been refined through many Committees of the House. Accordingly, I think what we are doing is innovative, world leading and, with its technology-neutral approach to the definitions, striking the right balance.
The problem with the amendment as I see it is not only that it is technically deficient, but that, on close reading, it does not exclude the retention of internet connection records, because it talks about the sender and recipient of communications, which is either end of the communication we are talking about when it comes to ICRs. Let us assume that that is an error. Even if we consider its intention at face value, the problem with going back to the 2009 regulations is that we are returning to the language of dial-up—the sort of non-broadband, non-mobile internet access we were all used to 15 years ago, but which now belongs in a museum. If we imprison ourselves in that sort of language, the danger that I have outlined becomes very real.
What next? Are we going back to the telex or the marconigram? We have to make sure that the language of the Bill keeps pace with the breathtaking scale of technological change. In the words of the hon. Member for Paisley and Renfrewshire North, the amendment just does not cut the mustard and I urge that it be withdrawn.
Keir Starmer
I beg to move amendment 175, in clause 79, page 62, line 34, at end insert—
“() the public interest in the protection of privacy and the integrity of personal data; and
() the public interest in the integrity of communications systems and computer networks.”.
Clause 79 sets out those matters to be taken into account before giving a retention notice, as well as likely benefits and the likely number of users. Amendment 175 would add two public interest matters to that list. My argument is similar to the one I made on other provisions. Where matters are to be taken into account, it is important that the protection of privacy and the integrity of personal data and of communications systems are specifically listed. I have moved to a position of thinking that an overarching privacy clause is probably the way to achieve this end; this is therefore a probing amendment and I will not press it to a vote.
The Solicitor General
I am grateful for the way in which the hon. and learned Gentleman states his case. To put it extremely simply, we would argue that the public interest in the protection of privacy and in the integrity of personal data are already factored in by the provisions of the Bill.
First, proportionality must include consideration of the protection of privacy. Secondly, the integrity of personal data being such an important public interest is why clause 81 requires any retained communications data to be of at least the same integrity as the business data from which they are derived. A retention notice will therefore not be permitted to do anything that would undermine the integrity of the data that the operator already holds for business purposes. That is all I want to say about the matter, but I assure hon. and learned Gentleman that those important considerations are at the heart of the processes we have followed.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 79 ordered to stand part of the Bill.
Clause 80
Review by the Secretary of State
Joanna Cherry
As the hon. and learned Gentleman says, the amendments would require that review under clause 80 be by a judicial commissioner rather than the Secretary of State. Will the Government tell us why the provision of such a route of review would not, in their opinion, give the telecommunications providers greater reassurance that notices are not only lawful, necessary and proportionate but stable and legally certain? It seems to me that a review by a judicial commissioner, or at the very least by the Investigatory Powers Commissioner, would provide that reassurance.
The Solicitor General
The hon. and learned Lady asks a perfectly proper question. I reiterate the position that we have taken in principle: the Secretary of State is the appropriate and accountable person to be responsible for reviewing retention notices. However, although the Secretary of State must be responsible for giving notices and must therefore be the person ultimately responsible for deciding on the outcome of the review, that does not mean that she or he can make the decision on the outcome of the review without consultation—far from it.
Clause 80(6) ensures that the Secretary of State must consult both the Investigatory Powers Commissioner and the technical advisory board. The commissioner must consider the proportionality of the notice; the board must consider the technical feasibility and financial consequences of it; and both must consult the operator concerned and report their conclusions to the operator and the Secretary of State. Only then can the Secretary of State can decide whether to vary, revoke or give effect to the notice. That system provides rigorous scrutiny of the notice and maintains the accountability of the final decision resting with the Secretary of State. We therefore believe it is the best mechanism for review. Accordingly, I commend the unamended clause to the Committee.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 80 ordered to stand part of the Bill.
Clause 81
Data integrity and security
Question proposed, That the clause stand part of the Bill.
Christian Matheson
I seek the Minister’s guidance. Throughout our considerations, I have spoken of my fears whether data held under this Act are held securely. I hope that clause 81 will address many of my fears; I seek the Minister’s advice on whether it lays responsibility on communications providers to maintain those data securely. I simply reiterate my concern that when theft does take place, there has to be a consideration of an offence of unlawful possession of stolen data, on the basis that the communications provider that has suffered the theft would also be legally responsible for that theft when the provider is in fact a victim of the theft itself. Bodies that seek to obtain illicitly a person’s private communications data may try to make financial gain as a result. Is the Minister confident that clause 81 gives me the kind of assurances that I have been looking for on internet security? Is there sufficient deterrent, in terms of possession of unlawfully obtained data, that might be included later in the Bill?
The Solicitor General
The hon. Gentleman has been consistent in stating his concerns. I assure him that clause 81 contains the sort of requirements that he would reasonably expect. It sets out the matter clearly. It should be read in conjunction not only with other legislation that I have mentioned, such as the Data Protection Act 1998 and the Privacy in Electronic Communications Regulations 2003, but with clause 210, which provides for the Information Commissioner to audit the security, integrity and destruction of retained data, and the codes of practice to which I referred earlier. The provisions in the communications data draft code of practice go into more detail about the security arrangements.
We had a discussion some days ago about the existence of adequate criminal legislation. The Bill has a number of provisions that relate to those who hold data, and we discussed whether existing legislation could cover those who come into possession of the data unlawfully. I say to the hon. Gentleman that I will take the matter away and consider it, and come up with a proper considered response to his query.
Question put and agreed to.
Clause 81 accordingly ordered to stand part of the Bill.
Clauses 82 and 83 ordered to stand part of the Bill.
Clause 84
Enforcement of notices and certain other requirements and restrictions
Keir Starmer
I beg to move amendment 225, in clause 84, page 65, line 20, after “not”, insert “, without reasonable excuse,”.
There are two points to make here. One is to state the principle that reasonable excuse defences are needed to protect those who are exposed in wrongdoing. We had that debate last week and I listened carefully to the response given. The practical reason is the inconsistencies may be intentional, or they may be unintentional. Clause 73(1), under which unlawful disclosure is made an offence under part 3, has a “without reasonable excuse” provision. Clause 84, which is in part 4, does not. There may be a very good reason for that, but it escapes me at the moment. That is either a point that the Solicitor General can deal with now, or I am happy for him to deal with it later on. It may be just one of those things when you draft a long, complicated Bill, but there is an inconsistency of approach here, because reasonable excuse is sometimes written in and other times not, for no apparent reason.
The Solicitor General
The hon. and learned Gentleman askes what the policy objective is of not having such a defence. The clear policy underlining this is the Government’s policy of not revealing the existence of data retention notices. They are kept secret because revealing their existence could damage national security and hamper the prevention and detection of crimes, because criminals may change how they communicate in order to use a provider that is not subject to data retention requirements. Clause 84 places a duty on providers not to reveal the existence of notices.
Keir Starmer
Just to be clear, I do not need to be persuaded about the policy objective of a clause that keeps a retention notice safe. It is the policy objective of not having a “reasonable excuse” defence to the provision, which operates as an exclusion to the prohibition, of which I need to be persuaded. I do not need persuading about the prohibition for safety.
The Solicitor General
I was coming to that. We are talking about a duty here; the earlier clause the hon. and learned Gentleman referred to is an offence. That will, I think, explain the importantly different context.
To deal with the question of “reasonable excuse”, the problem is that once the information is out in the public domain, it cannot be withdrawn—whether that information has been introduced with good or bad intentions does not matter. It cannot be right for the Bill to allow a person to release sensitive information in that way and then subsequently rely on a “reasonable excuse”.
May I deal with clause 84(4), which is relevant to this provision? It provides an exemption where the Secretary of State has given permission for the existence of the notice to be revealed. The Government intend that such permission would be given, for example, where a provider wishes to discuss the existence of their retention notice with another provider subject to similar requirements. Should the operator wish to reveal the existence of the notice, they should discuss the matter with the Secretary of State, and in such circumstances permission is likely to be given. There will be those sort of scenarios, as I am sure the hon. and learned Gentleman will understand, and they will help improve the operational model.
My concern about using the “reasonable excuse” provision in the context of a duty would be that it would undermine the important policy objective that I have set out. For that reason I would urge the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
I will withdraw the amendment. As to the difference between a duty and an offence, I understand that in principle, but I am pretty convinced that elsewhere in the Bill a breach of the duty becomes an offence, as otherwise it is an unenforceable provision, so I am not sure it is a distinction that withstands scrutiny. That being said, I am not going to press this to a vote. It would be helpful and reassuring if the Solicitor General would agree to set out the route by which a whistleblower brings this to attention. I think we have already agreed in general terms and it may come within the umbrella of the undertaking that has been given; if it does, all well and good. That would reassure those that have concerns about exposing wrongdoing. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
These amendments were consistent with earlier amendments that have now been withdrawn, the purpose of which was to put the decision-making power in the hands of the Investigatory Powers Commissioner or the judicial commissioner. The other amendments having been withdrawn, I will not press these to a vote; they do not make sense within the unamended Bill as it now stands.
The Solicitor General
We have already discussed the importance of protecting the identities of those companies subject to data retention notices, but there are circumstances where a telecommunications operator should be able to disclose the existence of a retention notice. Clause 84 allows the Secretary of State to give them permission to do so. The amendment would ensure that a telecommunications operator could disclose the existence or content of a retention notice to the IPC without the need for permission to be given. I would say the proposal is unnecessary, because it is absolutely the Government’s intention to give telecommunications operators permission to disclose the existence and content of the retention notice to both the relevant oversight bodies—the IPC and the Information Commissioner—at the point at which a notice is given. In any event, clause 203 as drafted would permit the telecommunications operator to disclose a retention notice to the IPC in relation to any of his functions.
Amendment 224 would mean that the IPC, not the Secretary of State, would be granting permission for a telecoms operator to disclose the existence of the notice. In practice the Secretary of State would consider, at the point that a retention notice was issued, to whom the telecommunications operator could disclose the existence of a notice. It would not make any sense for this issue to be considered separately by the commissioner following the issue of a notice by the Secretary of State.
Further requests by a telecommunications operator to disclose a retention notice are likely to cover administrative matters, such as disclosure to a new systems supplier. Such matters should appropriately be considered by the Secretary of State. I think that explanation not only justifies opposition to the amendments, which I know are being withdrawn, but supports clause 84.
Keir Starmer
I have nothing further to add, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Investigatory Powers Bill (Fourth sitting)
Robert Buckland ExcerptsTuesday 12th April 2016
(8 years, 1 month ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 April 2016 - (12 Apr 2016)
Keir Starmer
The answer to my question appears to be no, there has never been an example of the ISC or any Committee ever commenting publicly on the exercise by the Secretary of State of her specific powers to issue warrants or not. That is what leads David Anderson to the view that the political accountability card is overplayed in the discussion.
The Solicitor General (Robert Buckland)
This is a very important aspect of the debate. On the last remark made by the hon. and learned Gentleman, about David Anderson’s potential conclusion about political accountability being overplayed, I was interested in the arguments, but the fundamental point is the source of the authority that allows the Secretary of State as a democratically elected politician to make the decisions. Also, in particular in the context of national security, it is well set out in case law, as the hon. and learned Gentleman knows, that proper deference should be paid to the Executive on important decisions of national security. That is at the top end of the scale, then we move down—or across, in a different context—and is that not the issue?
The Solicitor General
It is a pleasure to serve under your chairmanship, Mr Owen, for the first time in what I am sure will be a number of important sittings.
May I address the amendment moved by the hon. and learned Member for Holborn and St Pancras? I am grateful to him for rightly pointing our way to paragraph 4.7 of the draft code. Indeed, by reference, paragraph 4.8 gives a clear basis for the decision maker to assess the nature of the proportionality. Therein lies something of the problem with regard to the approach to be taken in the clause. It is tempting, on the face of it, to include the test in the primary legislation, but it might provoke more questions than answers.
Naturally, when one makes a bald statement about proportionality, people want to know more, so where does one end in terms of adding to the primary legislation the detail that is necessary for decision makers to reach a considered conclusion? My simple argument is that the amendments therefore are not necessary. What makes this the right balance is the combination of the primary legislation that sets out the framework and a living document—the code of practice—that will be more easily amendable and accessible in terms of any changes that need to be made in the light of experience and practice.
We do not want to end up with a situation where this type of warrantry can only be obtained when all other avenues have been exhausted, a bit like the position when one comes to an ombudsman. That would be an artificial scenario to end up with and would cause problems operationally. I can think of examples where the exhaustion of other avenues will just not be practicable. For example, in a kidnap situation where an individual’s life might be in danger, this type of warrantry would probably be the most appropriate step to take before any other type of intervention. Of course, there are occasions where other means of intelligence gathering, such as live human intelligence sources, might be high-risk or result in a higher degree of collateral inclusion.
I am concerned that we do not end up, despite the best intentions of the hon. and learned Gentleman, with an inflexible approach on the face of primary legislation. It is far better, in my submission, to keep the balance as it is, as clearly outlined in the code of practice and the framework within the clause.
Suella Fernandes
I echo everything that the Solicitor General says. Is not the amendment trite, in that it is clear for any practitioner, judge or decision maker that the question in the amendment—whether the information sought could reasonably be obtained by other less intrusive means—is part and parcel of, and essential to, the proportionality test?
The Solicitor General
My hon. Friend makes a powerful point. There is a danger when dealing with primary legislation of gilding the lily. I mean that in the spirit of co-operation that I know we have managed to engender in these debates, in the main. For those reasons, I respectfully ask the hon. and learned Gentleman to withdraw his amendment.
Keir Starmer
I am grateful to the Solicitor General for the way he has approached this, but it misunderstands the amendment. Of course, whether information could be reasonably obtained by other means is relevant to the assessment of proportionality and necessity. The amendment proposes that, having taken all the factors into account, if it transpires at the end of that exercise that the information could have been reasonably obtained by other less intrusive means, it is not proportionate—that is the end of the exercise. That, in our submission, is the right test that should be on the face of the Bill. At this stage, I will withdraw the amendment with a view to raising it at a later stage if it is appropriate to do so. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 ordered to stand part of the Bill.
Clause 18
Grounds on which warrants may be issued by Secretary of State
Keir Starmer
I agree. I notice that my name is not on amendment 89. I think it should have been, because amendment 62 only works if subsection (2) comes out, but that is neither here nor there at this stage. I am not quite sure what happened, but given that both amendments have been tabled, it does not matter one way or another.
To be clear, the position is that it should be a substantive decision by the judge according to necessity and proportionality, and those terms obviously have their own special application. Through amendment 89, the review, whether by judicial review principles or otherwise, would come out, making it a true double and equal lock.
It is a new approach and a new provision, so it is for Parliament to decide on the appropriate way forward, but the amendments would give clarity and a real safeguard with an equal lock. That is the position. There probably is a fall-back position, which is that if it is to be a review of some sort, amendment 89 should stand on its own feet—that the review should not be on the principles of judicial review, and something more would need to be written into the Bill.
I do not know what response the Minister will give, but this matter goes to the heart of the issue, and it may be that further consideration needs to be given to the precise test. As it stands, the test is insufficiently precise and will lead to difficulties in its application. It is a matter of real concern to the judiciary. Lord Judge does not make such comments without a good deal of thought. If he is concerned about the provision, the Government should be, too. The simple way through is to have a simple but substantive double and equal lock.
The Solicitor General
The debate has been interesting. On a point of order, Mr Owen, I want to ensure that we are dealing with both groups of amendments. The grouping that I have seeks to group new clauses 1 and 5 in one group—
The Solicitor General
That is fine. I am grateful to you, Mr Owen. I will address those amendments, rather than the new clauses, which will be dealt with in the usual way, but the purport of the argument is similar.
To summarise, amendment 89 would remove the provision in the Bill that specifies that when reviewing the decision by a Secretary of State or a Scottish Minister to issue a warrant, the judicial commissioner must apply the same principles as would be applied by a court in an application for judicial review. Instead, the amendment would require him or her to determine the necessity and proportionality of a warrant for him or herself.
There has been a lot of debate on the important report by David Anderson and the Royal United Services Institute review. They have played a huge part in bringing the Bill to germination and its current state. There is a danger here. I listened very carefully to the evidence of Lord Judge and, indeed, asked him a number of questions. The dilemma that I put to him still remains. I can see the attractiveness in seeking to narrow or prescribe the particular criteria to be applied by the commissioners in every instance, but there is a danger that, in doing so, we fetter the proper discretion of judges exercising their review function in looking at each case purely on a case-by-case basis.
The hon. and learned Member for Holborn and St Pancras set out his stall very clearly. He prays in aid the equal lock, as he calls it. In essence, he wants a different approach from that which the Government say we should take. We make no apology that the decision made by the Secretary of State is reviewed by the judicial commissioner before coming into force. That is a very simple, staged approach that clearly reflects the way in which case law is going and is also ahead of the curve when it comes to the development of judicial oversight of warrantry in these particular cases.
I will deal with the Anderson carve-out, if I may use that phrase. The problem with the genuine intention of David Anderson in trying to carve out what he recognised to be an important part of the function of Government—namely, national security and foreign affairs, where he recognised that the Executive are the part of our constitution best placed to deal with those matters—and then creating a certification process is that that, in itself, is juridicable. An Executive decision will be made that is, in itself, capable of challenge. My concern is that, however well intentioned attempts to create a hard and fast definition that creates a theoretical space for Ministers to act might be, we will end up with further difficulty, further lack of clarity and, frankly, further litigation that means that the Bill is not future-proof in the way that I want it to be.
Keir Starmer
To save time—I probably should have made this clearer an hour ago when we were rowing about other things—I had seen this certification clause, or new clause 1, as going with the amendments to clause 17. In other words, it was my acceptance that, on certain measures, there ought to be a certificate from the Secretary of State for the limited accountability that I accept is there. Therefore, if it is helpful, amendments 62 and 89 are intended to be taken on their own, not cluttered by the certification process, which possibly would have been better discussed under clause 17.
The Solicitor General
I am grateful to the hon. and learned Gentleman. I remind myself that we will be able to debate those new clauses but I thought it important to look, in essence, at the full picture of David Anderson’s recommendations, bearing in mind that we had quite a lively debate about the role of the Executive. It would be a mischaracterisation of Mr Anderson’s view about the role of the Executive to say that somehow there was a wholesale move away from the Executive’s position with regard to warrantry and what Government Members certainly strongly feel is the important role of the Executive.
Coming back to where we are with regard to the judicial review test, we have already heard reference to the noble Lord Pannick. The intervention he has made is powerful and it is important that he thinks the test is robust. The criticism is, perhaps, not justified. Of course, that is not the only basis on which we have reached that conclusion. We all know—those of us who are lawyers and those who are not—the growing importance of judicial review in our public life. It is a concept that has evolved and that will continue to evolve. It is flexible, too.
Joanna Cherry
It is so general. I have advised people on the potential for judicial review. Does the Minister agree that it is difficult to advise a client on the potential for judicial review in the absence of a reasoned decision? In this Bill, there is no duty on the Secretary of State to give a reasoned decision, so judicial review scrutiny will be happening in a vacuum in the context of a decision for which no written reasons have been given because the Bill does not demand it.
The Solicitor General
Herein lies the problem. We have the judicial lock—the commissioners, of course, will be giving reasons—so that there is a check and balance upon the decision of the Executive. The hon. and learned Lady makes a proper point, because Executive decisions are administrative decisions that are judicable. I want to avoid further unnecessary and, frankly, unhelpful litigation that will get in the way of the important work of warrantry, which has to be undertaken, bearing in mind not only the interests of national security but, looking down the scale, the various scenarios that will confront commissioners, such as serious crime cases. The flexible scrutiny will allow differing approaches to be taken. Returning to the main point, I am worried that we might end up creating something that is too inflexible, which will create injustice rather than solve the problem.
Joanna Cherry
But how will the judicial commissioner scrutinise the Secretary of State’s decision, having regard to judicial review principles, when she is under no duty to give reasons for it? How will they do it practically?
The Solicitor General
They will have access to all the material that the primary decision maker has. The hon. and learned Lady is right to ask the question but, simply speaking, the judicial commissioner will have access to the material that the Secretary of State has. In fact, the judicial commissioner will be able to ask for more material, so there should not be any fear that the vacuum she mentioned will exist in relation to the judicial lock.
Returning to the obvious experience of judicial commissioners, I am keen to ensure that we end up in a position where commissioners feel that, on a case-by-case basis, they are not only free to agree with the Secretary of State, but are absolutely free to disagree. If there is not that element of flexibility, this double lock will be meaningless. Again, without casting any imputation upon the good intentions of those who have tabled amendments, my concern is that, first, this amendment is based on a difference of opinion on the nature of the judicial commissioner stage. Secondly, there is a danger that we might end up in a position where decisions are being second-guessed in a way with which the judiciary would feel uncomfortable, and where the balance between the actions of the Executive and proper scrutiny by the judiciary is not clearly delineated.
Suella Fernandes
Does my hon. and learned Friend agree that a similar inclusion of a reference to judicial review has worked well in other legislation and in other regimes, such as in relation to control orders and terrorism prevention and investigation measures? We have a history of such references not causing major problems.
The Solicitor General
I entirely agree with my hon. Friend. It would not be right for me to make an easy draw-across to the TPIM regime. The hon. and learned Member for Holborn and St Pancras has experience of TPIMs, and I was on the Bill Committee that passed the TPIM law back in 2011, so I have a keen interest in the evolution from what were control orders to TPIMs. The point is staring us all in the face: myriad different circumstances will confront judicial commissioners. It would be too easy for the Committee to come to a conclusion that, somehow, we should create an artificially hard and fast set of criteria that would prevent the judicial commissioners from exercising their duties when considering the varying scale and nature of the applications that they will receive.
Simon Hoare
My understanding of what the Solicitor General is saying—perhaps he will confirm this—and my reading of the Bill is that the bar is being set a lot higher than the hon. and learned Member for Edinburgh South West seems to imply. The onus in the first instance will be on those who will be making the case for the warrant. The Home Secretary, for example, will then review it to see whether it passes the tests in the Act and will do so, as will the author of the case before the Minister, in the knowledge that they will be, for want of a better phrase, peer reviewed by a commissioner. Therefore, the review of the review of the review is almost a triple lock of the case made by the authority seeking the warrant.
The Solicitor General
That is an interesting way of putting it. I want to make it clear that the review is on an appeal. There is a danger that we will end up mistakenly looking at some sort of a de novo application entirely on its merits, not an appeal. There are other mechanisms by which this matter could be taken further up. At this stage, it is part and parcel of the decision being made. That is an important point of clarification.
Keir Starmer
Can the Solicitor General point me to the words in clauses 1 and 2 that would make it wrong for a judge to apply long-armed judicial review principles to a decision?
The Solicitor General
I am not going to point to that because, as I have said, it is important to have wide discretion. But equally, as Sir Stanley Burnton said, there will be other approaches and judges will be compelled to take a much closer look or hands-on approach—I think Sir Stanley said “stringent approach”—when looking at the case. But that will depend on the case before the commissioner. For example, a case of extreme importance with potentially draconian impacts deserves a very close look under the microscope. That is important. What I want to get across is that there should be not a sliding scale, but a gradation and wide discretion in the test that allows differing approaches to be taken.
In response to the hon. and learned Gentleman, I would be surprised to see bald decisions on Wednesbury unreasonableness. Bearing in mind that, most of the time, European convention on human rights points will have to be engaged, and, by dint of that, necessity and proportionality will have to come into play anyway. Perhaps the point is too axiomatic to be made, but it is important that we do not get too fixated by a worry that judges will take an old-fashioned clubbish approach to whether the Home Secretary is totally out or order. I do not believe that will be the case, bearing in mind the calibre and experience of the commissioners who have done the work up to now and who I expect will carry on doing it in the unified commission that we will create.
In a nutshell—the point does not improve on repetition—there is a danger that in going down the seductive line of seeking greater clarity, we may end up fettering the reviewer’s discretion, which I do not think is in anyone’s interest and does not support the thrust of what all hon. Members want: an effective lock mechanism that properly involves the judiciary in a way that is unprecedented but welcome in our mature democracy.
Joanna Cherry
I have heard nothing that answers what in my submission is a knockout point about lack of reasons. I am not tooting my own trumpet because it was not my idea. I got the point from my learned devilmaster, Laura Dunlop QC, a distinguished silk at the Scottish Bar and former law commissioner. I asked her to look at this and she said the first thing that occurred to her was how can there be scrutiny under judicial review principles when there is a vacuum of any reasoning. I have not heard any answer to that question in what the Solicitor General has said, with all due respect to him.
On that basis, I remain of the view that amendments 62 and 89 will be essential in due course, but following the course of action we have taken today, I will not insist on them at this stage. I reserve the right to bring them forward at a later stage, about which the Chairman has advised me.
Joanna Cherry
SNP amendment 102 is very similar to amendment 39, which the hon. and learned Member for Holborn and St Pancras spoke to, but there are two differences. First, on the areas in which a judicial commissioner must instruct the special advocate, I have deleted
“in the interests of the economic well-being”
in line with an earlier amendment. Secondly, in relation to the appropriate Law Officer who appoints special advocates, I have inserted, for the purposes of subsection (7)(b), the Lord Advocate as opposed to the Advocate General. The reason for that is that subsection (7)(b) deals with
“the consideration of items subject to legal professional privilege”,
which would relate to devolved rather than reserved matters in general terms. In my submission, it would be respectful for the Lord Advocate as well as the Advocate General to be consulted about special advocates.
I am wedded to the notion of special advocates. I do not have a huge amount to add to what the hon. and learned Gentleman said, other than to point out that David Anderson QC, in paragraph 18 of his written evidence to this Committee submitted following his oral evidence, states that he would
“like to confirm my view that the right of the Judicial Commissioners under the dual lock system should be clearly acknowledged”
and
“use standing counsel to act as amicus where appropriate in relation to applications for the approval of warrants”.
The special advocate scheme that I advocate goes a bit further than that. The purpose of the special advocate would be
“to represent the interests of any person or persons subject to the warrant or the wider public interest”
in the protection of privacy. The amendment would place a judicial commissioner under a duty to appoint a special advocate in a case involving a claim of national security or one that is subject to legal professional privilege. The appointment of the special advocate would ensure that the material produced to support an application is subject to adversarial testing as far as possible. That is the broad thrust of the amendment.
The Solicitor General
I am grateful to the hon. and learned Member for Edinburgh South West and the hon. and learned Member for Holborn and St Pancras. The hon. and learned Lady was very clear about the different basis of her amendment. My concern is that there are two schools of thought here. There is the amicus curiae school of thought, with which I have a great deal of sympathy. One of the roles of the Law Officers is, when we are approached by various jurisdictions, to consider whether the attorney himself should intervene or whether the court should have an amicus appointed. The hon. and learned Gentleman is right to talk about some of the confusion that can exist in regard to inherent jurisdiction. I am going to take that point away and consider it.
I am concerned about a full-blown replication of the important special advocate system that we have to assist, for example, the Special Immigration Appeals Commission, or of the genesis of the Justice and Security Act 2013 and the closed material procedure. There is an important difference between the public interest in having special advocates and this type of scenario. In such cases, there are affected parties—usually respondents to important applications—for whom huge issues are at stake and who need that sort of quality representation within what we accept are exceptional and unusual departures from the principle of open justice. That is why special advocates were created. They perform an invaluable and important role.
I do not see the read-across from that to this scenario. What we have here is an investigatory procedure. It takes place at the early stages—to take a case example—of the investigation of a crime or a threat to national security. There may not be at that stage an identifiable suspect; there is, therefore, a difference and a difficulty in identifying the prejudice that could be caused to the interest of an individual who is a party to the proceedings. It is a different scenario and, tempting though it might be to introduce that type of regime, it would serve only to introduce delay, bureaucracy and extra expense with no tangible benefit to the integrity of the system.
In a nutshell, I will consider carefully the amicus curiae point, but I have wholly to reject a wider approach and the creation of a special advocate system which, frankly, would go beyond even the American jurisdiction, with which comparison is often made—in the foreign intelligence surveillance court in the US they have amici curiae available to assist the court. On that basis, I urge the hon. and learned Member to withdraw the amendment.
Keir Starmer
I have nothing to add. In the light of what the Solicitor General has said I will not press the amendment. I look forward to what he produces and to further discussing that. I beg to ask leave to withdraw the amendment.
The Chair
With this, it will be convenient to discuss:
New clause 1—Power of Secretary of State to certify warrants—
“(1) The Secretary of State may certify a warrant in those cases where—
(a) The Secretary of State has reasonable grounds to believe that the conduct authorised by the warrant is necessary pursuant to section 18(2)(a) (national security) and relates to—
(i) the defence of the United Kingdom by Armed Forces; or
(ii) the foreign policy of the United Kingdom.
(b) The Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(2) A warrant certified by the Secretary of State under subsection (1) is subject to approval by a Judicial Commissioner.
(3) In deciding whether to approve a warrant certified by the Secretary of State under subsection (1), the Judicial Commissioner must determine whether—
(a) the warrant is capable of certification by the Secretary of State under subsection (1); and
(b) in the opinion of the Judicial Commissioner, approving the warrant is necessary on relevant grounds under section 18(2)(a) and subsection (1)(a) or (b) of this section.
(4) Where a Judicial Commissioner refuses to approve a warrant certified by the Secretary of State under this Section, the Judicial Commissioner must produce written reasons for that decision.
(5) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a warrant under subsection (3), the Secretary of State, or any special advocate appointed may ask the investigatory Powers Commissioner to decide whether to approve the warrant.”
This new clause is intended to replace existing Clause 21 and provides for the Secretary of State to certify warrants in cases concerning defence or foreign policy before they are considered by a judicial commissioner.
New clause 5—Power of Secretary of State to certify warrants—
“(1) The Secretary of State may certify an application for a warrant in those cases where the Secretary of State has reasonable grounds to believe that an application is necessary pursuant to section 18(2)(a) (national security) and involves—
(a) the defence of the United Kingdom by Armed Forces; or
(b) the foreign policy of the United Kingdom.
(2) A warrant may be certified by the Secretary of State if—
(a) the Secretary of State considers that the warrant is necessary on grounds falling within section 18; and
(b) the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(3) Any warrant certified by the Secretary of State subject to subsection (1) is subject to approval by a Judicial Commissioner.
(4) In deciding to approve a warrant pursuant to this section, the Judicial Commissioner must determine whether—
(a) the warrant is capable of certification by the Secretary of State subject to subsection (1);
(b) the warrant is necessary on relevant grounds subject to section 18(2)(a) and subsection (1)(a) or (b); and
(c) the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(5) Where a Judicial Commissioner refuses to approve the person’s decision to approve a warrant under this section, the Judicial Commissioner must produce written reasons for the refusal.
(6) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, approves or refuses to approve a warrant under this Section, the person, or any Special Advocate appointed, may ask the Investigatory Powers Commissioner to decide whether to approve the decision to issue the warrant.”
The Solicitor General
We have dealt admirably with many of the issues in the clause and I will not speak to the stand part debate.
Keir Starmer
I do not wish to speak to new clause 1. It stands or falls with the clause 17 amendments and is to that extent withdrawn along with them.
Joanna Cherry
Thank you, Mr Owen, and apologies to Committee members. The purpose of the amendments is to—sorry, I have lost my train of thought completely.
The Solicitor General
I think we were dealing with urgent cases. I hope that is of some assistance.
Joanna Cherry
Yes, I am very grateful to the Solicitor General. I skipped ahead to modifications, so I will skip back to urgent. The purpose of the amendments is to specify that urgent warrants can be issued only when they are necessary, in an emergency situation that poses an immediate danger of death or serious physical injury, and that a judicial commissioner should be informed immediately that an urgent warrant has been issued. They also seek to reduce the period within which a judicial commissioner must decide whether to approve the issue of a warrant to 24 hours after its issue.
There were differing recommendations from the Joint Committee and the Intelligence and Security Committee. I think I am correct in saying that the ISC recommended 24 hours and the Joint Committee 48. In terms of case law, recent decisions of the European Court of Human Rights suggest that 48 hours would be an absolute minimum, so I would insist on that as a fall-back position.
The Solicitor General
This is, of course, an important issue that has already seen a good deal of consideration for the Government and a move away from the original proposal to three working days; the hon. and learned Gentleman is right about that.
Although we are considering the matter carefully, at this stage the right balance is being struck between the interests of the security services and the other agencies in ensuring that crime is detected and prevented at the earliest possibly opportunity, and the interests of preserving the balance between the rights of the individual and the need to deal with crime and threats to national security. I am happy to consider amending the relevant draft codes to deal with the question about the notification to judicial commissioners, so that it is made clear on the face of the code that that should happen as soon as reasonably practicable. That wording is more appropriate than “immediately”, given that it may take a small period of time to draw together the materials that the commissioner will wish to review when considering whether to approve the warrant.
The hon. and learned Member for Edinburgh South West made a point about decision making in a vacuum. The commissioner will have the decision of the Secretary of State and all the materials upon which that Minister has made the decision, as well as access to further material. I think it is clear that the decision maker will have everything they need and more to come to an informed and reasoned decision based upon the principles of judicial review. On the basis of my undertaking to consider amending the draft code of practice, I hope that the hon. and learned Member for Holborn and St Pancras feels able to withdraw the amendment proposing the word “immediately”.
Let me deal with the central points about the decision and the length of time within which the warrant should be approved. The effect of the amendments would be to reduce that, and I recognise that the Joint Committee that undertook the pre-legislative scrutiny of the Bill made a similar recommendation. We have therefore responded in an appropriate way by shortening the window within which urgent action can be taken. That has been widely welcomed. It is an important consideration and an example of how, throughout this procedure, the Government have taken note of reports, listened and acted accordingly on those recommendations.
It is not in anybody’s interests to create so tight a statutory framework that decisions end up being rushed. I therefore consider that the three working days now provided for in the Bill should give sufficient time for the judicial commissioner to be presented with and to consider the grounds upon which the Secretary of State decided to issue the urgent warrant. My worry is that by reducing the time period even further, we would give the commissioner even less time, which would lead to the sort of decision making that would perhaps not be in anybody’s interests, let alone those of the state.
Amendment 91 seeks to define urgency on the face of the Bill and to replace the definition currently provided for in the draft statutory codes of practice with a narrower definition. As the Committee will appreciate, we must provide law enforcement and the security and intelligence agencies with an operationally workable framework. We will have failed with this Bill if we provide the agencies with the powers that they need, but with ones that cannot keep up with the pace and scale of the threats that we face. I know that it is always a challenge for legislators to try and—to use the modern phrase—“future-proof” legislation, but it is important that we create a framework that is not only clear and simple to understand, but sufficiently flexible to take into account the fact that, from month to month, the nature of the threat changes.
I am afraid that the effect of the amendment would be to curtail that ability because the definition would be too narrow. The draft statutory codes of practice, which we have all been considering, define urgency, which is determined by whether it would be reasonably practicable to seek the judicial commissioner’s approval to issue the warrant in the requisite time. That time period would reflect when the authorisation needs to be in place to meet an operational or investigative need.
The code sets out the three categories with which we are familiar: first, where there is the imminent threat to life or serious harm, and I gave the example of a kidnap case earlier. The second is where there is an valuable intelligence-gathering opportunity, where the opportunity to do so is rare or fleeting—that might involve, for example, a group of terrorists who are just about to make that trip overseas and are making the final preparations to do so. The third is where there is a time-limited significant investigative opportunity—here I speak with years of experience of dealing with drugs cases—such as the imminent arrival of a major consignment of drugs or firearms, when timing is of the essence.
I am afraid that narrowing the definition of urgency so that it only relates to an immediate danger of death or serious physical injury to a person would mean significant lost opportunities when it comes to investigation and gathering of intelligence. It would have an impact on the ability to act in a way that would allow interception at a time, for example, that would be apposite to capture a particular drugs seizure.
Another example would be the terrorist cases that I deal with week in, week out—in terms of the function of the Law Officers granting consent to prosecution. If, for example, a group was making final preparations to travel out to Syria to join Daesh, it would cause a problem for the security and intelligence agencies if they were not able to seek urgent authorisation to intercept telephones because there was no immediate danger of death or serious physical injuries.
In my considered opinion, I am afraid that the amendment would allow a significant gap in the security, intelligence and law enforcement agencies’ ability to keep us safe. I do not think that any hon. Member in this House wants that to happen. I know that it not their intention but it is my genuine concern. On that basis, I invite hon. Members to withdraw the amendment.
Joanna Cherry
I have listened carefully to the Solicitor General. The difficulty for him and the Government is this: according to recent case law from Strasbourg, a 48-hour timeframe for authorisation would be the maximum to harmonise the process with that recent case law. The case of Zakharov v. Russia included that a complaint for urgent interception could occur without judicial authorisation for up to 48 hours. There really is no reason why the UK should allow a longer period for approved surveillance than Russia. The difficulty with three working days is that if they fall over a weekend, it can mean five days or, indeed, if it is a bank holiday weekend, six days. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 ordered to stand part of the Bill.
Clause 23
Failure to approve warrant issued in urgent case
Joanna Cherry
I will keep this fairly brief. The amendment would require a judicial commissioner to order that material collated under an urgent warrant that he does not authorise subsequently be destroyed, except in exceptional circumstances. As the Bill stands, should material be obtained under an urgent warrant that is later unapproved by the judicial commissioner, the judicial commissioner may, but is not required to, order destruction of material obtained. Once again, it is my argument that the provision, as it stands, creates a significant loophole that could be used to bypass the legal protections that purport to be provided by the judicial review mechanism.
An urgent warrant allows the relevant agency to access material that it may not be authorised to access in law. Permitting the retention of that material in anything other than exceptional circumstances creates a clear incentive to use the urgent process in inappropriate cases so, in order to ensure that the applying agencies—the agencies that apply for warrants—only use the urgent process where strictly necessary, the Bill needs to ensure that there are no advantages to be gained from seeking an urgent warrant where it is not strictly necessary. The amendment would ensure that where a judicial commissioner does not authorise the use of the warrant retrospectively, the position must be that the material collected is destroyed, except in exceptional circumstances.
The Solicitor General
I am once again grateful to the hon. and learned Lady for setting out her place clearly and with admirable succinctness. There is a problem with the amendment because it very much begs the question of what might constitute exceptional circumstances. The question of who will determine whether the threshold had been met in a given instance is also raised. Introducing that caveat to the Bill would unnecessarily complicate the commissioners’ decision-making process. The commissioners will be extremely well qualified to decide how material should be used when cancelling a warrant. They will take into account all the relevant circumstances on a case-by-case basis, and the clause, as drafted, allows them to do just that without the necessity of introducing subjective terms.
The amendments also suggest that the only two viable options following the failure to approve a warrant issued in an urgent case are to destroy the data or, in undefined exceptional cases, to impose restrictions on their use. That is unnecessarily limiting. There may be occasions when vital intelligence is acquired that could be used to save lives or to prevent serious crime, and where using that intelligence may not involve any further undue incursions into privacy. In that situation a judicial commissioner may wish to allow the intercepting agency to continue with its work without restriction in the interests of the great benefit it might have. Of course, that is a decision for the commissioner to determine, and clause 23, as drafted, allows just that. I am afraid that the amendments would mean that a judicial commissioner could not choose, after carefully considering the facts of the matter at hand, to allow such vital work to continue unrestricted. My worry is that the unintended consequences of such a proposal could seriously inhibit the work of the intercepting agencies.
Finally, the amendments would entirely remove the ability of a commissioner to decide what conditions may be imposed upon material selected for examination. By removing clause 23(3)(c), the remainder of the clause would relate only to material obtained under a warrant. Of course, a targeted examination warrant does not authorise the obtaining of any material, but rather the examination of material obtained under a bulk warrant, which is why clause 23(3)(c), as drafted, includes a specific provision that allows a judicial commissioner to direct how material that has been selected for examination under a rejected urgent warrant should be used.
In effect, the amendments attempt to change a carefully constructed safeguard that gives judicial commissioners absolute control over the actions of the intercepting agencies. I fear that the unintended result of these amendments would be an overall reduction of the judicial commissioners’ powers. For those reasons I invite the hon. and learned Lady to withdraw her amendment.
Joanna Cherry
I have nothing to add, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 ordered to stand part of the Bill.
Clause 24
Members of Parliament etc.
Joanna Cherry
Picking up on what the hon. and learned Gentleman just said, the purpose of amendment 104 is to address a lack of consistency of approach in the Bill regarding the protection afforded to correspondence with Members of Parliament, journalists and lawyers. I stress that the purpose behind the amendment is not to seek a particular privilege for parliamentarians, lawyers or journalists, but to protect the correspondence of members of the public with lawyers, parliamentarians and journalists.
The Bill contains different approaches. Clause 24 affords protections to Members of Parliament subject to targeted interception warrants, but not to journalists seeking to protect their sources. Similarly, although the provisions later in the Bill on access to communications data to target journalistic sources provide for authorisations to be subject to judicial review, access to other comms data that might engage the privilege afforded to Members of Parliament or to legally privileged material is not so protected.
Amendment 104 would provide consistency of approach to all three categories of privileged information, modelling the approach broadly on the provisions in the Police and Criminal Evidence Act 1984—an English Act for which I must say I have much admiration. I am still trying to get to grips with it, but I think it is a good piece of legislation. It protects legally privileged material and journalistic material from interference during police searches.
The amendment would also provide a special procedure for access to MPs’ and journalists’ correspondence, which would be dependent on independent judicial authorisation, as opposed to authorisation by politicians. With all due respect to the Home Secretary, I did not find her triple lock on protection for parliamentarians terribly convincing. That is not a point about the present Government—it could apply to any Government of any persuasion—but it seems to me that having the Prime Minister as the triple lock does not give the appearance of political impartiality. Where parliamentarians’ communications are being interfered with, the authorisation should be judge-only.
Last night, I chaired an event with speakers from the Bar Council, the Law Society of England and Wales and the National Union of Journalists. They all consider that the protections in the Bill for journalists, for legal professional privilege and for parliamentarians are not sufficient. My own professional body, the Faculty of Advocates, which is the Scottish equivalent of England’s Bar Council, also considers that the protections in the Bill are not sufficient, as does the Law Society of Scotland.
I will quote what the Law Society of Scotland said in its evidence to the Joint Committee:
“On the 14 December we provided oral evidence to the Joint Committee, alongside the Law Society of England and Wales, expressing our shared and serious concerns in relation to professional legal privilege and the provisions of the Bill. Legal professional privilege”—
referred to in Scotland as the obligation of confidentiality—
“is key to the rule of law and is essential to the administration of justice as it permits information to be exchanged between a lawyer and client without fear of it becoming known to a third party without the clear permission of the client. Many UK statutes give express protection of LPP and it is vigorously protected by the courts. The ‘iniquity exception’ alleviates concerns that LPP may be used to protect communications between a lawyer and client which are being used for a criminal purpose. Such purpose removes the protection from the communications, allowing them to be targeted using existing powers and not breaching LPP.”
I do not wish to be seen to be making any special pleading, either as a lawyer and a politician or on behalf of the journalist profession. It is more about special pleading on behalf of the members of the public who contact journalists, parliamentarians and lawyers, and who wish to do so in confidence for a very good reason.
The Solicitor General
I am grateful to the hon. and learned Member for Holborn and St Pancras for seeking not to get ahead of himself with respect to the arguments on legal professional privilege. I feel a degree of sympathy, because the hon. and learned Member for Edinburgh South West was inevitably going to deal with these matters in the round. Although different considerations apply to each category—parliamentarians, journalists and legal professionals—both hon. and learned Members are absolutely right to lay emphasis not on individuals in those professions but on the client, the source and the constituent. That is why these roles have a special status: it is about the wider public interest. The Government absolutely understand that and we place it at the very heart of our consideration of how warrantry should operate in these areas.
As you will know, Mr Owen, there has already been significant movement by the Government as a result of the various reports that we know all too well. I am delighted that matters of legal professional privilege are now in the primary legislation in great measure. The debate will therefore be about the extent to which safeguards are placed in the primary legislation and about what form they take. I will heed the hon. and learned Gentleman’s exhortation and not stray too far into that area.
I will therefore deal with the amendment to clause 24 and the question of parliamentarians. We heard last year the Prime Minister’s statement about the issue and the important requirement that he or she is to be consulted before the Secretary of State can, with judicial commissioner approval, issue a warrant to acquire communications sent by or intended for a Member of a relevant legislature. The clause applies to all warrants for targeted interception, with the exclusion of warrants authorised by Scottish Ministers, and includes the all-important requirement for the Prime Minister to be consulted before a targeted examination warrant can be issued to authorise the examination of a parliamentarian’s communications collected under a bulk interception warrant.
Part 5 contains similar provisions for equipment interference carried out by the security and intelligence agencies. The important protection in clause 24 will apply to the communications of Members of Parliament, Members of the House of Lords, United Kingdom MEPs and Members of the devolved Parliaments and Assemblies. It is important to observe that for the first time, what was a doctrine for the best part of 50 years is now codified and enshrined in primary legislation.
It is important to remember in the spirit of the wider public interest that nobody, least of all parliamentarians, is above the law. The Wilson doctrine has perhaps been misunderstood for many years as a blanket exemption for parliamentarians, but that is exactly what it was not. It was actually an explanation that there will be times when the national or the public interest demands that the communications of Members of Parliament be intercepted because there might be criminal purpose behind them. We hope that that will never happen, but sadly human experience teaches us otherwise. It is therefore important to strike a balance between the proper exercise of the privileges of being a Member of this place or of the other Assemblies and Parliaments in the United Kingdom and the principle of equality before the law.
The amendments introduce the concept of special procedure material and try to combine the approach to the safeguards afforded to the three categories that I have discussed. To put it simply, I submit that what is on the face of the Bill and in the accompanying codes of practice already provide those safeguards and indeed go beyond what can be encompassed in primary legislation. At this stage, I will not say anything further, because I want to deal with points that I know hon. Members will raise about the other categories.
Keir Starmer
Can I ask the Minister about journalistic sources? I am concerned that there is nothing about them on the face of the Bill. He will know how anxious journalists are about this. Will he consider whether something should be put on the face of the Bill? There is an inconsistency: in other parts of the Bill, such as clause 68, there is express provision relating to journalists. There is something in the code of practice, but there is nothing on the face of the Bill, which is the problem. Without committing himself to a particular form of words, will he commit to considering one and perhaps liaising with us about what form it could take?
The Solicitor General
I am mindful of the fact that my colleague the Security Minister is meeting with the National Union of Journalists. I cannot commit the Government to a particular course of action, but let me put this on record. We are absolutely committed to the preservation and protection of a free press and freedom of expression in our democratic society. That includes the ability of sources to provide anonymous information to journalists, which is absolutely vital if we are to have throughput of important information that needs to be in the public domain.
At the same time, there is a danger. We must not unduly fetter, on the face of the legislation, the important work of our law enforcement, security and intelligence agencies. We live in an age of constant blogging and other social media tools. Journalists themselves do not like being defined as a profession. I have been criticised in the past for using that terminology when talking about journalists, for example in the context of the Leveson process. Now, however, there are increasingly wide and loose definitions of who are journalists and what journalism is, and my worry is that that will, and does, inadvertently prevent legitimate investigation of those who are threatening our national security or who are planning to commit serious crime.
Keir Starmer
I accept that it is a high standard to meet, but it is focused on the wrong target. If it is wrong in principle to target legally privileged material on the basis that that material might involve communications that further crime, on a proper understanding, that material has already lost its legal privilege. Having a higher test to target something that has not lost its legal privilege is a good thing, but it is not enough. Material that has not lost its legal privilege should not be targeted, because it is in fact not furthering crime. The proper way to deal with it is to recognise that what one really wants to target is communications that have lost their privilege. However, there is a risk of including—unintentionally, because one does not want to target it—other material, and that requires a different approach and a different regime. That is really the point. It is good to have a threshold, but the threshold does not work within the confines of this scheme.
I urge the Solicitor General to view the clause in that light and to reflect again on it. A lot of work has been done to try to get it into a better state, but that has not met with the approval of the Bar Council and, following analysis and discussion with the council, I can see why. New clause 2 is the council’s attempt to get it right. It has spent a lot of time on it and is very concerned about it. I invite the Minister to reflect again and commit to looking again at the clause, perhaps with us and the Bar Council, to try to get a clause that meets with the approval of everyone concerned. If that can be achieved, it will be a prize worth having; if it cannot, it will be a waste of a bit of time on a good cause.
The Solicitor General
Although it comes at a late hour, this is an important debate. We have come a long way on this issue. There was silence as to the presence of legal professional privilege in the draft Bill. The Government have rightly listened to the evidence and have now made important amendments to clause 25.
Keir Starmer
I and the Bar Council would like an example of that. If it is being advanced that even where the iniquity exception is not made out—in other words, it is properly legally privileged communications—there none the less may be circumstances in which the privilege yields under the Bill. We need to be clear about the circumstances he envisages. In a sense, he is suggesting that the communications can be targeted once they have lost their quality in cases where the iniquity exception is not made out—in other words, where it is a proper professional exchange between lawyer and client, fully protected until now. We had better have an example. The Bar Council will be very interested, because this issue goes to the heart of the privilege.
The Solicitor General
I know that the hon. and learned Gentleman has looked at the code, and the example I will give him is the example in the code under paragraph 8.37. I will read it into the record, because this is an important point. The example is:
“An intelligence agency may need to deliberately target legally privileged communications where the legal consultation might yield intelligence that could prevent harm to a potential victim or victims. For example, if they have intelligence to suggest that an individual is about to conduct a terrorist attack and the consultation may reveal information that could assist in averting the attack (e.g. by revealing details about the location and movements of the individual) then they might want to target the legally privileged communications.”
In other words, that is not the furtherance of a crime, because the legal adviser is not hearing or in any way participating in the outline of a plan. There might be information in there that seems to the adviser to be innocent information about the suspected terrorist living in a particular location or associating with particular individuals, but which, because of the surrounding intelligence in the case, may well give a basis for the intelligence agency to target that individual, because the information means more to the agency.
Keir Starmer
The Minister points to an example that I have discussed with the Bar Council. I must put its view on the record, which is that in those circumstances, there would be an offence if someone was not providing the relevant information about that sort of incident to other than the lawyer. We may need to take this discussion forward in an exchange of letters, with the benefit of what the Bar Council has to say, but in its view that is not a good example for what would be an exceptional incursion into legal privilege. That is why I urge the Minister, rather than batting this back at this stage, to take the opportunity to have further discussions with the Bar Council to get this provision into a form that is acceptable to all.
The Solicitor General
I am always happy to discuss matters with the Bar Council. As one of the leaders of the Bar, the hon. and learned Gentleman knows that I go to regular Bar Council meetings. I was with it on Saturday, and I listen carefully to what my friends and colleagues at the Bar have to say.
However, the example I am giving explains the situation. There might be information that is entirely innocuous to the lawyer. Let us say that there is a consultation happening. The lawyer might ask a few questions about the address and associates of the person that do not, to him or her, disclose an offence being committed, but which might, in the wider context, provide the security and intelligence authorities with evidential leads that build a wider picture of which the lawyer will be unaware. That is not the furtherance of a crime; it is innocent. What would be innocuous information to the lawyer might mean something more, because a wider context might give the appropriate agency the grounds upon which it could then make its application for warrantry.
There is a distinction. I am not saying that it will be commonplace—far from it. That is why we have worded the terms of the clause very carefully. We talk about “exceptional and compelling circumstances”. I cannot imagine a higher threshold for an applicant to meet than those words.
An additional attraction is that, for the purposes of this legislation, we do not try to define what is meant by legal professional privilege. It is a bit like the argument about parliamentary privilege—the more we try to modernise and define it, the more it ceases to exist as a meaningful concept. One has to be careful about using vehicles like the Bill to define what is a very wide-ranging principle that applies to myriad circumstances involving lawyers and their clients. Although I am in the spirit of dialogue, that is why I would strongly hesitate before adopting the amendments.
Victoria Atkins
I have listened, with great care, to the submissions made by the hon. and learned Member for Holborn and St Pancras, and I have some sympathy with the position that he has put forward. One of the issues that has consoled me is that any such warrants that are proposed will have to meet the threshold of the double lock, namely the Home Secretary and the judicial commissioner, who, I imagine, will be very careful to protect legal professional privilege. Is my understanding correct?
The Solicitor General
My hon. Friend sums it up admirably. We have taken a different approach from RIPA, and rightly so. We have listened to the concerns expressed by the wider community, not just members of the profession, and are fully cognisant of the importance of legal professional privilege. It was part of my daily professional life for nearly 20 years so, as a Minister and as a lawyer, I fully understand its importance. Therefore, I hope that the example I have given gives an important insight into what we regard as “exceptional and compelling circumstances”. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.
Keir Starmer
I will not take much time. The Solicitor General prays in aid the dangers of over-defining, but the danger of the clause is that it will cut across legal professional privilege. Let us be realistic about what that means: wire taps to listen to privileged legal communications where the iniquity exception does not apply. A lawyer will never again be able to say that a communication—even one within the proper limits of a legal communication—is protected, because there could be no such guarantee. There will always be the possibility that it will not be protected. At the moment, it can be said that as long as it does not fall into the inequity exception, a communication is protected. In the other examples that have been used, it would not be interceptors; it would be bugs in cells. In the end, that is the road that will be opened by this proposal. A lawyer believes that they are having a confidential discussion on proper terms and appropriately with their client, yet that is intercepted. That is why I think the Bar Council feels so strongly about it.
Of course, there is a danger in defining legal professional privilege, but there is a much greater danger in getting to a position where a lawyer can never again say, “I guarantee that, as long as it is within limits, this is a protected communication.” That is at the heart of the Bar Council’s concern. I have said all I need to say. That is the problem.
The Solicitor General
We have to be careful about this. We have prison rules, for example. The hon. and learned Gentleman and I know that there are already certain prescribed circumstances and scenarios that exist. I am not advocating a coach-and-horses approach that can be taken by authorities who have a cavalier regard for LPP. This is a very prescribed exception. The words “exceptional and compelling” are strong. He paints a nightmare scenario—I know that he does so with genuine concern for a privilege that he and I hold dear—but I think that we are getting the balance right and that what he envisages will not come to pass.
Investigatory Powers Bill (Second sitting)
Robert Buckland Excerpts(8 years, 1 month ago)
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The Solicitor General (Robert Buckland)
Q Thank you, Mr Walker; it is a pleasure to serve under your chairmanship. Mr McClure, you have made some powerful points, so thank you very much indeed for giving your perspective on the IT, and as a bereaved relative. We all share your grief and anger about the atrocity.
Mr Wardle, I want to ask you about internet connection records, the new potential powers within the Bill and the purposes for which those records could be retained by an internet service provider. We know now that, as a result of the Joint Committee’s recommendations, there are four purposes for which those records could be retained for potential examination by the authorities. I think that they are very clearly set out: for the purposes of identifying who sent a communication; to establish what services either a suspect or a potential victim has been using; to establish whether or not a known suspect has been indulging in online criminality; and finally—the additional one—to identify services that a suspect has accessed, which could assist an investigation. If there was a narrowing of those purposes, what effect do you think that would have upon the authorities’ ability to investigate child abuse and related offences?
Alan Wardle: As I understand it, the previous draft Bill had a narrowing in the fourth one, and I appeared before the Joint Committee before Christmas to argue against that narrowing. I cannot remember the exact wording, but it was essentially where illegal activity was happening.
Again, I go back to the example of the grooming case I mentioned earlier. Grooming, by its very definition, takes place over a period of time. There are certain activities that you would want to investigate that are perfectly legal. Say a child has been trafficked across the country. Someone has hired a car, taken it from A to B and dropped it off, and they have gone on to the Travelodge website to book a hotel room. All of those are perfectly legitimate activities, but those activities—as part of a wider investigation—would be able to show the police that that person trafficked that child from A to B and that those activities took place. Clearly more would be needed, but the narrowing that was there before would, we believe, have unduly restricted the police’s ability to investigate those kind of crimes.
Joanna Cherry (Edinburgh South West) (SNP)
Q May I ask you some questions about internet connection records? Can you confirm that you have read the operational case for internet connection records referring to the case of Amy?
Alan Wardle: I do not think I have read that.
Mr Hayes
Q That is something the Joint Committee recommended and now forms part of the Bill. On internet connection records, can you give us a flavour, also from your case experience, of the kinds of crimes and circumstances in which they might be vital to an investigation and, ultimately, to catching and convicting people involved in serious crime?
Chris Farrimond: Let us just start with the fact that internet connection records are the new comms data; they are the modern equivalent of comms data, the normal itemised billing that we have had for years and years. Criminals are using internet communications even if they do not necessarily realise it—when they send an iMessage, for instance, in an internet communication, rather than a text message. That is happening the whole time, and it is happening right across the population, whether people are law-abiding or criminal, so internet connection records now feature in every type of criminality. They are featuring more in those types of crime where the internet plays a larger part—fraud, for instance. I can talk about child sexual exploitation, where the internet makes it so much easier to share images, so internet connection records would be extremely useful for us in those circumstances.
Simon Grunwell: HMRC’s business model going forward is to put more and more services online to enable taxpayers to do more themselves, a bit like an online bank account. We already have online frauds. We are quite attractive for fraudsters, in the sense that we collect £500 billion a year and we pay out £40 billion in benefits and credits. Comms data helps us directly prevent the loss of £2 billion in revenue. On the ICR point, in particular, we have already had online attacks against us. In one case alone we were able to prevent the loss of £100 million. ICRs can only help us in that regard.
Richard Berry: From a local policing point of view, it is not just about serious crime; it is also about—if I can use this phrase—policing the digital high street. So ICRs could be just as relevant for cases such as domestic abuse, stalking and harassment, to prove a particular case, or to help us deal with what might seem, in isolation, to be a minor issue, but can often be on a path of escalation to homicide or very serious assault.
The Solicitor General
Q You were just asked about anonymity and the perceived danger to anonymity—for example, in the Crimestoppers scenario—but that would apply if I telephoned Crimestoppers now, wouldn’t it?
Chris Farrimond: It would.
The Solicitor General
Q Theoretically, you would be able to get access to the phone number that I have used and work out who that number was linked to and, presumably, link that to me now.
Chris Farrimond: Yes.
The Solicitor General
Q As I understand it, these internet connection records will be held by CSPs—communications service providers—not by the authorities.
Chris Farrimond: Correct.
The Solicitor General
Q In order to access those records, you have to apply to a SPOC, or via that procedure, and then a filtering process will apply.
Chris Farrimond: Yes, it does.
The Solicitor General
Q So the scenario of the authorities holding this information and being able, at a whim, to breach anonymity is nonsense, isn’t it?
Richard Berry: We certainly very much follow the procedure of looking at each application and testing it for its necessity against its purpose, the proportionality, the levels of collateral intrusion and things like the timescales involved. If you look at the annual reports of the Interception of Communications Commissioner’s Office in 2015, you will see that they even go to the extent—I think it was done on about 100,000 applications— of looking at the amount of time a decision maker, a designated person or, under the new legislation, a designated senior officer, actually takes to consider all the tests that are required to ensure that the parameters are tight and that justification is in place.
Byron Davies (Gower) (Con)
In my experience, the UK is regarded as a world leader in intelligence-led law enforcement and I am sure that you agree that the Bill will enhance your capability. Can you tell me how important to your work it is that this legislation applies extraterritorially?
Chris Farrimond: It is rare for serious crime to be investigated and to have no international aspect to it at all. Certainly in the case of the National Crime Agency, almost every single case that we investigate has got an international aspect to it, but I suspect that that is the same for both my colleagues as well. That means that communications data will almost certainly be held in a third country at some point, because we have been communicating with people in other countries. The extraterritoriality will at least give us the ability to ask for those data. I do not doubt that there will be some complications when it gets compared with the host nation legislation along the way, but, nevertheless, at the moment we have a very lengthy process to get material back from other countries, so if this can help in any way, shape or form in speeding that up, that will be a good thing.
Richard Berry: It certainly is a strategic priority for law-enforcement policing to look at how we can ensure, as Chris said, this fragmentation of data across server farms, in clouds and across several countries is increasingly a challenge for us, so any legislation that can help with that process will be particularly useful.
The other point that I would make, building on what you said in your introduction, is also quoted by the commissioner in the 2015 report. Communications service providers, certainly in the US, very much favour the British SPOC system, because there is a dedicated, rigorous system, whereas they could perhaps be approached individually by—I think, to quote them—one of “10,000 FBI agents”, all adopting a slightly different process. So we have got the right systems in place; I think it is really the relationships and the access that is critically important.
Simon Grunwell: I will just add that the internet obviously provides mobility and anonymity. We could have an attack from anywhere in the world, online, so we need to keep pace effectively with digital changes. Sometimes the only clue that we have as to who is criminally attacking us is a digital one. The ability to go extraterritorial to pursue that one clue could be vital.
Christian Matheson
Q You could still handle those investigations and deal with them, but when it was apparent that they are of a sufficiently serious nature you can involve the police, who are then able to make the applications on your behalf, so you would not need access under the terms of the Bill.
Mark Astley: It is a valid point, but I believe that the powers are there for the trading standards, who do a really good job, and they have done an excellent job so far in dealing with high-level crime.
The Solicitor General
Q In the last year for which records are available, which I think is 2015, about half a million applications for access to comms data were made. About 0.4% of those were local authority applications.
Mark Astley: That is correct.
The Solicitor General
Q So we are talking about several thousand out of about half a million. Is that right?
Mark Astley: Well, if you look at the last two years alone, we are talking 3,300.
The Solicitor General
Q You were asked questions about the replication of the existing regime relating in England and Wales to magistrate authorisation, in Scotland to sheriff authorisation, and in Northern Ireland to district judge or magistrates court authorisation, for applications for access to comms data by local authorities. Those provisions are replicated in the Bill, are they not? I think it is in clause 66. But they are in the primary legislation.
Mark Astley: They are.
The Chair
Colleagues, I think we could do with a 12-minute break, because people have to get coffees and check with their offices.
Sitting suspended.
Examination of Witnesses
Lord Judge, Clare Ringshaw-Dowle, Sir Stanley Burnton and Jo Cavan gave evidence.
The Solicitor General
Q May I go back to the first points made about the judicial review test? I put in a plea for the poor parliamentary draftsmen and women who work very hard indeed to try to strike a balance between avoiding excessive prescription and the dangers of being unduly vague. Lord Judge, you suggested we were falling more towards the latter end of the spectrum and being somewhat unhelpful.
There are in clause 18 the necessity criteria that are applied by the Secretary of State and then by the commissioner. The difficulty I have is, what do I do? I am trying to ensure the commissioners have discretion and the ability to make a nuanced decision based upon the individual case before them. At the same time, I am being told, “Well, that isn’t good enough.” Should the draftsmen produce a non-exhaustive checklist, or is that in itself full of dangers for the commissioners when it comes to their decision making?
Lord Judge: I think it is a matter of principle that has to be decided by Parliament—of which I am a Member, in the other place. What check is appropriate for Parliament to put on the Secretary of State exercising this very important power?
The Solicitor General
That is there; it is in clause 18.
Lord Judge: There it is. If you leave it as judicial review, we know that judicial review depends on the context, on when you have last been in the Supreme Court and when the last case came from the European Court of Human Rights; it is a flexible concept. That is one of its strengths, but I am not sure that in the context of the public responsibility that goes with the issue of these warrants there should be a flexible concept.
The Home Secretary has to make the decision. As it happens, if there is the equivalent of Brussels here in London, she will now be there. She will be answering. She will say, “I did issue this warrant,” or “I didn’t.” Whichever way she did it, she will be responsible and answerable to you. What is the role of the judicial commissioner in such an arrangement? Does he come before you too, because he said, “I don’t agree with this warrant,” or, “I do agree; I do support it”? We need to be clear what you want the commissioner to do. Not everybody agrees with me, but I think that just saying “judicial review” is not clarifying where responsibility rests at the really crucial moment, which is when disaster strikes.
The Solicitor General
Q But you appreciate the problem that we have in getting this right.
Lord Judge: I do, but that is what Parliament is for. We have to decide what the law should be. I myself would like the law on this issue to be absolutely unequivocal, whatever Parliament or the House of Commons ultimately want.
Sir Stanley Burnton: We wonder what the function of clause 196(6) is. It is either telling a judge the obvious or it is a big stick to wave at the judge, to say, “You have to approve this because if you don’t, you’ll be jeopardising the success of an intelligence operation.”
Suella Fernandes
Q Building on the point made by the Solicitor General, clause 21 sets out the “necessary” and “proportionate” tests. We have heard a lot about those words. What questions do you ask when you are assessing proportionality? What is that analysis?
Sir Stanley Burnton: You are looking at the effect of the measure in question as against alternatives and as against the mischief that is aimed at—are we talking about saving life, or it just a matter of money? If it is money, is it a lot of money? Is it pensioners’ money or the Government’s? You weigh one up against the other, and in the end, it is a matter of assessment—looking at one and looking at the other.