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Investigatory Powers Bill - Committee (3rd Day)

Part of the debate – in the House of Lords at 3:45 pm on 19th July 2016.

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Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 3:45 pm, 19th July 2016

My Lords, Clauses 63 to 65 provide that the Secretary of State may establish, maintain and operate filtering arrangements for communications data—the request filter—and detail the appropriate safeguards and restrictions around its use.

Public authorities currently need to receive all the communications data disclosed by communications service providers in response to specific requests so they can determine which specific pieces of communications data are relevant to their investigation. Public authorities will sometimes need to make complex queries. For example, they may need to ask multiple communications service providers for data to identify an unknown person who is suspected of having committed a crime at three different places at different times. Currently, public authorities might approach communications service providers for location data to identify the mobile phones used in those three locations at the relevant times in order to determine whether a particular phone and a particular individual are linked to the three offences. This means the public authority may acquire a significant amount of data relating to people who are not of interest.

The request filter will mean that when a police force makes such a request, it will see only the data it needs. Any irrelevant data will be deleted and not made available to the public authority. The filter acts as a safeguard, as the noble Lord observed a moment ago, protecting privacy by ensuring that public authorities see only the data they need.

The joint scrutiny committee on the draft Bill stated:

“We welcome the Government’s proposal to build and operate a Request Filter to reduce the amount of potentially intrusive data that is made available to applicants”.

It believed that the requirement upon law enforcement to state the operational purpose for accessing data through the filter and the oversight of the Investigatory Powers Commissioner will ensure appropriate use of the filter.

Clause 64 makes it clear that the request filter may be used to obtain, disclose or process communications data only if the relevant authorisation specifically authorises that use. The designated senior officer must consider that, in addition to the necessity and proportionality concerns provided for in Clause 58, what is being authorised in relation to the filtering arrangements is proportionate to what is sought to be achieved. It also provides that the relevant authorisation must record the designated senior officer’s decisions on the use of the request filter. I therefore take issue with the suggestion from the noble Lord, Lord Strasburger, that the request filter could somehow be used to permit fishing trips, as he termed them. The request filter cannot permit such expeditions. The filtering arrangements can operate only in response to a specific, necessary and proportionate authorisation for the acquisition of communications data. In other words, that request must already have gone through all the existing communications data safeguards, such as authorisation by a designated senior officer. Indeed, the operation of the filtering arrangements will be overseen by the Investigatory Powers Commissioner. Clause 64 makes it clear that the request filter may be used to obtain, disclose or process communications data only if the appropriate authorisations have been made.

Clause 65 provides that the Secretary of State must ensure the application of the appropriate restrictions on the request filter, maintain adequate security measures with regard to the request filter, put in place procedures to ensure its effective functioning and report to the Investigatory Powers Commissioner regarding its functioning on an annual basis, including immediately reporting any significant processing errors. This again underlines the point that the commissioner will be overseeing the operation of the filter.

As the noble Lord observed a moment ago, the request filter will act as a safeguard when it is used. It will accept communications data disclosed by communications service providers only in response to lawful requests from public authorities, and will automatically filter those communications data to ensure that only the data that are required to answer the request are provided to the public authority. In short, it will ensure that police officers and others will see only the information that they really need to in such cases.

In response to the inquiry from the noble Lord, Lord Strasburger, no, there is no request filter in existence at present. In response to the observations from the Baroness, Lady Hayter, she is right. The privacy clause applies to all powers which represent an intrusion into privacy. That has always been the intention since those privacy provisions were placed expressly in the Bill.

I turn to my noble friend Lord Lucas’s amendments. I entirely agree with his intention to ensure that the operation and use of the filtering arrangements are effectively overseen and regulated. I therefore reassure him that the effect of the amendments he has tabled is already fully provided for in the Bill. On record-keeping, Clause 64(3) requires the designated person to record whether the filtering arrangements are used to obtain communications data in pursuance of an authorisation, as well as recording the description of the data that may be processed. These records are additional to the extensive records that the draft code of practice also requires relating to each authorisation.

The Bill also already provides that the Investigatory Powers Commissioner oversees all authorisations for the acquisition of communications data, including those using the filtering arrangements. Clause 63(5) also requires the Secretary of State to consult the commissioner about the principles on the basis of which the filtering arrangements are established, maintained and operated. Clause 63(4) requires the filtering arrangements to involve the generation of information required by the commissioner in his oversight role. Clause 65(6) requires the Secretary of State to report annually about the functioning of the filtering arrangements. I hope this provides the noble Lord with some reassurance.

I hope I can provide some reassurance to the noble Lord, Lord Paddick, regarding Amendment 146A and the operation of the request filter. As I said, the privacy clause in the Bill already requires a public authority to have regard to a number of factors when granting an authorisation or giving a notice to obtain communications data under Part 3 of the Bill. The privacy clause does not make specific reference to the establishment, operation and maintenance of the filter, and we consider that to be the correct approach. Because every request for communications data must be made in accordance with the requirements in the privacy clause, it has to be the case that the design and operation of the filter must allow for those requests to be compliant with that clause anyway.

In addition, the Secretary of State is already bound by the requirements of the Human Rights Act in any actions that she takes, further ensuring that the filter will be designed in such a way that any request made through it is compliant with the requirements of the privacy clause. Accordingly, we do not consider it necessary to make specific reference to the filter in the privacy clause, or to include a provision along the lines of the amendment.

I turn to Amendments 134, 135, 138, 142, 144 and 240. The noble Lord seeks to make a number of amendments to the filtering arrangements provisions that I hope I can reassure him are unnecessary and, in some cases, unhelpful. The filtering arrangements will mean that communications data disclosed by a communications service provider in response to an authorisation will be filtered, and a public authority will see only the data that they need to. Any irrelevant data will be deleted and not made available to the public authority. On Amendments 134 and 240, the detailed provisions, restrictions and safeguards that are in the Bill already preclude the need for regulations.

On Amendment 135, to leave the Secretary of State to establish the filtering arrangements but without a clear lawful basis for the Secretary of State—or anyone else, for that matter—to maintain and operate them makes little sense.

As regards Amendment 142 and an annual report to Parliament, I remind noble Lords that the Bill already provides for the Investigatory Powers Commissioner, who must oversee the functioning of the filtering arrangements, to report annually to the Prime Minister, who must lay a copy of the published report before Parliament.

On error reporting in Amendment 144, the provisions in the Bill already strike the right balance between ensuring that the Investigatory Powers Commissioner—who oversees the operation of the filtering arrangements —is made immediately aware of significant errors and overwhelming the commissioner with reports of minor errors which do not need to be conveyed with such urgency, which would not achieve anything. Aside from ensuring that these significant errors are properly reported, it is of course for the commissioner to determine what information about the operation of the filtering arrangements, including processing errors, he requires to fulfil his oversight duties. A requirement for the filtering arrangements to generate and retain such information as the commissioner considers appropriate is already specifically set out in Clause 63(4).

I assure the noble Lord that the filtering arrangements are a vital part of the Bill and are already subject to strict safeguards set out in the primary legislation. These amendments are therefore at best unnecessary and at worst may weaken some of those safeguards already in the Bill. I invite the noble Lord to withdraw the amendment.