Investigatory Powers Bill

Viscount Hailsham Excerpts

Monday 11th July 2016 Lords Chamber

My points on “less intrusive means” and the Human Rights Act are the most important of a number that I think very important. Other noble Lords will have had more direct experience than I have of hearing or reading words such as “Parliament clearly intended” or “Parliament must have intended”. I do not quite know what we intend on this clause. It has rightly been welcomed for acknowledging the need for safeguards right up front and spelled out clearly. It would be a real shame if we did not get it absolutely right. I beg to move.

[Viscount Hailsham (Con)]

I reinforce what the noble Baroness has said with regard to Clause 2(4). The first line—

“The other considerations, may, in particular, include”—

means in effect that the criteria and considerations set out are open-ended. While the public authority may have regard to any of the considerations set out in Clause 2(4), it can also have regard to any other considerations that it deems fit. That seems a very unsatisfactory state of affairs.

[Lord Lester of Herne Hill (LD)]

My Lords, I put my name to a couple of these amendments and I would like to speak to them. Under our constitutional arrangements, the Human Rights Act is the next best thing that we have to a constitutional guarantee of fundamental rights and freedoms. The Minister has rightly put his name on the front of the Bill, stating that in his opinion it is compatible with the convention rights. I have put my name to these amendments to seek to make sure that what the Minister has put on the face of the Bill becomes transparently clear in the statute when it is enacted.

Article 8 of the convention, which guarantees the right to personal privacy, indicates that any exception must be provided by law—that is to say, satisfy legal certainty—and by the principle of proportionality, and that any interference must be necessary and no more than necessary to safeguard other compelling public interests. The problem with the Bill as drafted is that it does not go quite far enough to ensure full compliance with the Human Rights Act and with Article 8 of the convention. That is why the amendments in the name of my noble friend Lady Hamwee are needed, in my view. First, it is important not merely to have regard to but to make sure that there is full compliance with the principle of proportionality. That is what these amendments seek. Secondly, without repeating what has already been said, it is very important that the obligations on public authorities—for example, not to use the powers listed in Clause (2)(1)—are no more than what,

“could reasonably be achieved by other less intrusive means”.

That is classic principle-of-proportionality language.

I very much hope that in one way or another the Government will come to accept these amendments or something very similar to them so that we can make sure that lawyers like me are not able to go to court to challenge all of this under the Human Rights Act, but that Parliament gets the statute clear to put beyond doubt the application of the principles of legal certainty and proportionality, which is what these amendments are designed to do.

I will say just a word about Amendment 14, not because I want to make an elaborate statement about it but because, as I said at Second Reading, it is very important that we have a board or commission with the requisite powers. I will come to that in later debates on the Bill.

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[Earl Howe]

My Lords, I can do no other than have particular regard to the noble Lord’s advice. I shall gladly reflect on what he has said. It is a rash Minister who does not take account of advice from the noble Lord.

[Viscount Hailsham (Con)]

May I press my noble friend more on this point? With regard to subsection (3), there is a test of relevance. Subject to the test of relevance, it seems to me that, under subsection (4), the public authority can in effect have regard to any consideration it deems fit. Is that correct?

[Earl Howe]

As I have said, it is not intended to be an exclusive list. There are, of course, factors that may well be relevant and a public authority will wish to have regard to that are not included in the list. We did not intend the list to be exclusive. However, I am grateful to my noble friend and, once again, I will take advice on whether the wording quite fits the intent.

The House has a proud tradition of respect for human rights. The Human Rights Act is referred to in Clauses 1 and 2. It is the Government’s view that those references make it absolutely explicit that the obligations and protections in that Act apply to the exercise of functions under the Bill. While I am sympathetic to the intention behind Amendments 9 and 13 and I listened with care to the noble Lord, Lord Lester, as I always do, I do not think the amendments are necessary. Public bodies are already required to act in accordance with the Human Rights Act 1998. Our position is aligned. The Human Rights Act is not an optional consideration when exercising the investigatory powers in the Bill. The Government consider it unnecessary to restate the position for that reason. Furthermore, we do not want to cast doubt in other places in statute where it is not restated, as that may serve actually to undermine the strong standing of the Act and the rights contained within it.

Turning to Amendment 10, I do not believe there is a divergence in principle here; this is merely a matter of drafting. The clause sets out that a public authority must have regard to certain considerations, and that duty is subject to the need to have regard to other considerations that exist elsewhere in the law. It would be superfluous to state that public authorities must have regard to things that they already must have regard to. For example, a warrant can be issued only where it is necessary and proportionate, and this is explicit in the relevant parts of the Bill. Equally, the need to comply with the Human Rights Act is encompassed within that Act: it does not need to be restated here. I hope that provides some reassurance and that the noble Baroness will, on that basis, choose not to press this amendment.

On Amendment 11, Clause 2(2) sets out the principles that public authorities must have regard to when exercising certain functions under the Bill. It is not an exhaustive list, and subsection (4) sets out some of the other factors that may be taken into consideration. Again, I emphasise that subsection (4) does not contain an exhaustive list. There will be other principles outside this list that public authorities will need to have regard to, and we should not cast doubt over that, as the amendment would.

My noble friend Lord Hailsham questioned the use of the word “may” as opposed to “must”. The use of “may” in subsection (4) should not be taken to imply that it is optional for public authorities to have regard to the principles listed in that subsection. The law requires, for example, that public authorities must always comply with their obligations under the Human Rights Act.

There are of course some factors listed at subsection (4) that will not be relevant in all circumstances: for example, it may not be meaningful, when modifying a national security warrant, to have regard to the public interest in the prevention of serious crime. But, to be clear, the use of the word “may” does not absolve public authorities from their wider obligations under this Bill or any other legislation.

I turn now to Amendment 12. Economic well-being is of course one of the statutory purposes of the security and intelligence agencies, and the reference to it in Clause 2 is intended to reflect that—nothing more. When powers under the Bill are authorised in the interests of the economic well-being of the United Kingdom, there must be a link to national security. The language at Clause 2 does not alter or undermine that; it simply reflects the statutory purposes of the agencies. As drafted, Clause 2 provides clarity and consistency with existing legislation. Given the specific limitations elsewhere in the Bill, any amendment to Clause 2 along the proposed lines is unnecessary.

Amendment 14 is the final one in this group. Your Lordships’ Committee is in no doubt of the importance of the office of the Independent Reviewer of Terrorism Legislation. David Anderson QC, who has occupied the role since February 2011 and whom both my right honourable friend the Home Secretary and I hold in the highest regard, does an excellent job of reviewing key counterterrorism statutes. His independent oversight and recommendations help us to ensure that our counterterrorism legislation is fair, effective and proportionate, and that it strikes an appropriate balance in the face of the very real and serious threat we face from terrorism.

Following the passage of the Counter-Terrorism and Security Act 2015, the Government undertook a consultation on whether David Anderson would benefit in his role from the support of a privacy and civil liberties oversight board. Having been informed by a public consultation on the board’s establishment, by David Anderson’s own recommendations on this matter and by the need to ensure the best value for public money, the Government decided that they could most effectively support the reviewer in discharging his statutory functions by instead providing him with specialist legal assistance in the form that he recommended in his July 2014 annual report.

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[Lord Paddick (LD)]

My Lords, my noble friend Lady Hamwee and I have Amendments 19 and 66 in this group. The relevant part of Clause 4 that we are talking about here deals with the definition of “interception”. Clause 4(1)(b) talks about interception being,

“to make any content of the communication available, at a relevant time”.

It is the expression “at a relevant time” that we wish to probe. Clause 4(4) describes “relevant time” as being during transmission, or before or after transmission. For us, that begs the question: what does “relevant time” therefore mean? Why does it have to be stated that “relevant time” is necessary, bearing in mind that it seems to cover every time before, during and after transmission?

I turn to Amendment 66. Clause 42(1) talks about interception being effectively lawful if both,

“the sender and the intended recipient … have each consented”.

This amendment simply suggests that that consent should perhaps be in writing. I beg to move.

[Viscount Hailsham]

My Lords, I would like to raise two points, if I may, about Amendment 66. I entirely agree with the suggestion that the consent should be in writing, and I would rather hope that the Minister will give us some reasons why it should not be, because on the face of it, it is an extremely sensible suggestion. As we all know, there is sometimes a certain degree of opaqueness regarding what people have or have not done. Looking at Clause 42, to which Amendment 66 applies, I have some difficulty in understanding the relationship between subsections (1) and (2). I am not sure why subsection (2) is there, given the language contained within subsection (1). Perhaps my noble friend can help us on that.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I wish to speak briefly to Amendment 68, which is in my name and that of my noble friend Lord Rosser. Clause 45(1)(a) permits interception by a Revenue & Customs officer under Section 105 of the Postal Services Act 2000. That is the provision that contains the power to open postal items, so that is clear enough. However, Clause 45(1)(b) permits interceptions by, again, a Revenue & Customs officer under the same Section 105 “and another enactment”. It is the phrase “and another enactment” that I am not quite clear about. If Section 105 is sufficient, why add the words “and another enactment”? If it calls on some other law in order to legitimise this activity, should that not be detailed in the clause? Amendment 68 therefore proposes deleting the second arm—the “and another enactment” bit—unless the Minister can make some sense of it for me.

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Government Amendment 69 is included in this group, as an amendment to Clause 46, which concerns the interception of communications by Ofcom. The clause authorises Ofcom to intercept communications and obtain information about the sender, recipient or intended recipient of a communication for the purpose of granting wireless telegraphy licences, or for the prevention or detection of anything which constitutes interference with wireless telegraphy. This clause brings into the Bill authorisation to undertake action which is currently provided for by the Wireless Telegraphy Act 2006. The amendment that the Government have proposed is minor and technical in nature and simply clarifies that the definition of interception in Clause 46 is the same as the definition in Clause 4.

[Viscount Hailsham]

Could I press my noble friend a little more on Amendment 66? Of course I understand that there will be circumstances when written consent cannot be made, but there will be many other circumstances when it can be obtained. I note, for example, that it involves the consent of both parties. That suggests that it happens some time before the interception takes place. I should have thought it perfectly possible to have a proviso that the consent should in general be forthcoming and evidenced in writing, but that there should be a disapplication in urgent situations. In dealing with that matter, can my noble friend help me as to why we have subsection (2) as well as subsection (1) of Clause 42?

[Earl Howe]

My Lords, I am very sorry to have to disagree with my noble friend about the consent in writing, which would be likely to result in completely impractical situations. It is not clear what real advantage would be gained. In any case, most of the time, prior consent in writing would simply not be an option. Taking the example again of a telephone call, it is difficult to see how the normal transaction of business would not be completely impeded if we insisted on this provision.

I shall endeavour to respond to my noble friend about his question on subsections (1) and (2). I do not have a ready interpretation to give him now but, if I can during the proceedings, I shall do so.