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Investigatory Powers Bill - Committee (3rd Day)

Part of the debate – in the House of Lords at 4:30 pm on 19th July 2016.

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Photo of Lord Strasburger Lord Strasburger Liberal Democrat 4:30 pm, 19th July 2016

My Lords, I rise to speak to Amendment 147A in my name and that of my noble friend Lord Paddick. My noble friend also has Amendment 156A in this group and he will speak to that amendment; I may have something to add on it after he has spoken.

Amendment 147A requires a judicial commissioner to authorise requests to obtain data from internet connection records. As it happens, this is a very hot topic because only this morning an Advocate-General of the European Court of Justice issued his opinion in the case brought by Tom Watson and, before his appointment to the Cabinet, David Davis. Of course this is not the final judgment of the court, but it is usual for it to confirm an Advocate-General’s opinion. This case concerns the Data Retention and Investigatory Powers Act 2014, one of the Acts that this Investigatory Powers Bill seeks to replace.

In particular, the ruling addresses the legality and the safeguards around the speculative retention of communications data. As such, it is of direct relevance to the provisions in this Bill regarding the retention of communications data and the retention of internet connection records. So I have discarded most of my speech and instead I will let the Advocate-General’s words speak for Amendment 147A on my behalf. At paragraph 236 of his ruling he states:

“Lastly, I would add that, from a practical point of view, none of the three parties concerned by a request for access is in a position to carry out an effective review in connection with access to the retained data. Competent law enforcement authorities have every interest in requesting the broadest possible access. Service providers, who will be ignorant of the content of any investigation file, are incapable of checking that requests for access are limited to what is strictly necessary and persons whose data are consulted have no way of knowing that they are under investigation, even if their data is used abusively or unlawfully … Given the nature of the various interests involved, the intervention of an independent body prior to the consultation of retained data, with a view to protecting persons whose data are retained from abusive access by the competent authorities, is to my mind imperative”.

So the Advocate-General is saying that, because the police have a strong interest in the request for the data, and because the service providers cannot judge the merits of the request, and because the subject of the request does not know that it exists, it is imperative, in his words, that an independent body should decide. Incidentally, he goes on to suggest that there could be exceptions in cases of “extreme urgency”.

To my mind, that independent body he speaks of can only be the judicial commissioner, which is precisely what Amendment 147A stipulates. If the Government believe that the independent body could be something other than the judicial commissioner, perhaps the Minister can inform the Committee when he responds, and say how the Government intend to incorporate the Advocate-General’s opinion, should it be confirmed by the court, into this Bill. I beg to move.