Investigatory Powers Bill - Committee (4th Day)

– in the House of Lords at 3:36 pm on 5th September 2016.

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Relevant documents: Pre-legislative scrutiny by the Joint Committee on the Draft Investigatory Powers Bill, Session 2015–16; 1st Report from the Joint Committee on Human Rights; 2nd Report from the Delegated Powers Committee; 3rd Report from the Constitution Committee

Amendment 191

Moved by Lord Paddick

191: After Clause 206, insert the following new Clause—“Notification by the Investigatory Powers Commissioner(1) The Investigatory Powers Commissioner is to notify the subject or subjects of the use of the investigatory functions mentioned in section 205(1) to (3), including—(a) the interception or examination of communications,(b) the retention, accessing or examination of communications data or secondary data,(c) equipment interference,(d) access or examination of data retrieved from a bulk personal dataset,(e) covert human intelligence sources,(f) entry or interference with property.(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.(3) The notification under subsection (1) must be sent by writing within 30 days of the completion of the relevant conduct or cancellation of the authorisation or warrant. (4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of—(a) the conduct that has taken place,(b) the provisions under which the conduct has taken place, and(c) any known errors that took place within the course of the conduct.?(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security operation or investigation.(6) The Investigatory Powers Commissioner must consult the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, Amendment 191 is in my name and that of my noble friend Lady Hamwee. It would insert a new clause after Clause 206 requiring the Investigatory Powers Commissioner to notify those who have been subject to the powers contained within the Bill, as set out in Clause 205(1) to 205(3), once the operation against them is complete or the warrant is cancelled. There are various conditions for notification and the ability to postpone notification in certain circumstances following discussion with the person to whom the warrant is addressed.

Citizens are entitled to the protection of the law but, as the Bill is drafted, it is impossible to challenge the Government and the use of state instruments of interference in people’s private lives if they have no idea that they have been the subject of surveillance. To quote the briefing provided by Liberty, if a person’s Article 8 rights—to a private and family life—and other Human Rights Act rights have been engaged and potentially violated,

“in order to have access to an effective remedy, as required under human rights law, the person must first be made aware of a possible breach”.

Cases in 1978 and 2006 before the European Court of Human Rights upheld this view. In 2007, the court went further and said that,

“as soon as notification can be made without jeopardising the purpose of the surveillance after its termination, information should be provided to the persons concerned”.

Post-event notification is already in place in some form in Germany, Belgium and the state of California in the United States of America.

There must of course be safeguards and these are built into the amendment, allowing the Investigatory Powers Commissioner to postpone notification if he assesses that it might defeat the purposes of an ongoing serious crime investigation or national security operation, after consultation with the body that issued the warrant. The right honourable Theresa May, the Prime Minister, repeatedly stated when she was Home Secretary that this is world-leading legislation. If that is the case, let us be radical and implement this amendment. I beg to move.

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords

My Lords, as the noble Lord explained, Amendment 191 would insert a new clause that would see subjects of the lawful and proper use of investigatory powers notified of that fact.

There are a number of problems with that proposition, both in principle and from a practical perspective. First, let me be clear that I agree with the principle that where a serious error has occurred in the use of the investigatory powers, the commissioner should be able to inform a person affected. Clause 198(1) makes this absolutely clear.

However, I do not agree with the principle that, as a matter of course, anyone subject to the lawful use of an investigatory power must be notified, unless it would damage an ongoing serious crime or national security investigation. A principle of that kind would mean, for example, that we would need to notify suspected criminals and terrorists that they have been under investigation just because a specific ongoing investigation had stalled or, indeed, had concluded with evidence of wrongdoing but with insufficient evidence to bring a prosecution.

As noble Lords will know, suspected criminals and terrorists will often appear on the radar of the police and the security services at different times in the context of different investigations. It would clearly not be appropriate to inform them that investigatory powers had been used against them in a particular case as this could prompt them to change how they behave or communicate, which could hamper a future investigation. This is particularly important in relation to national security because this amendment would require the commissioner to make the subject of interest aware of,

“the conduct that has taken place’.

That would not just run contrary to the long-standing policy of successive Governments of neither confirming nor denying any specific activity by the security and intelligence agencies, but would essentially require the techniques the agencies use in specific cases to be made public. That would clearly assist terrorists in their operations, allowing them to stay one step ahead of the agencies.

Beyond the principled objections to this amendment, there would be 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. For example, he would have to require the relevant telecommunications operator to provide him with a list of all relevant customers, and it would have to inform him every time a new customer joined its service. It would not be difficult for criminals to use that process to identify services that they could use to avoid detection.

Equally, I suggest to the noble Lord that it would put unreasonable burdens on all public authorities covered by this Bill to require them constantly to need to make a case to the commissioner as to whether it would hamper national security or serious crime investigations if subjects were told that investigatory powers had been used against them. It would surely be better for the police to spend time and money on investigating criminals, rather than on determining whether individuals should be informed about perfectly lawful investigative activity.

Furthermore, in the context of bulk warrants under parts 6 and 7, the public authority or commissioner would need to examine all the data collected under the warrant to identify the individuals whose data have been collected. That would not only be impractical, but data would be looked at that otherwise there would have been no need to examine. This new clause would therefore actually lead to greater intrusions into privacy than would otherwise be necessary, which I am sure cannot be the intention.

I submit to the noble Lord that the proposed amendment is at best unnecessary and at worst threatens fatally to undermine the work of law enforcement and the security and intelligence agencies.

Let us be clear what the effect would be. It is not innocent, ordinary, law-abiding people who would be notified, because the agencies do not seek or obtain warrants against such people; it is suspected criminals and terrorist suspects. They would then change their behaviour, and we would have less chance of bringing them to justice. That point lies at the nub of the argument I have put to the noble Lord. I am sure that cannot be his intention, so I hope he will consider it the right thing to do to reflect on this point between now and Report, and withdraw the amendment at this stage.

Photo of Lord Beith Lord Beith Liberal Democrat 3:45 pm, 5th September 2016

My Lords, before my noble friend responds, which I think he is about to do, I will take the opportunity to say that the motivation behind my noble friend’s amendment is a very sound one. The fact that you do not know whether you are being wrongly investigated is contributing to a sense of unease about the intelligence provisions and this legislation. This is a problem we have to try to address.

The Minister has put forward some genuine, practical considerations which would make it difficult to implement a clause such as my noble friend’s. This is not a new problem: throughout the history of the Investigatory Powers Tribunal, we have had the problem that the only answer that could be given is that no unlawful activity has been carried out, which does not tell you whether any activity has been carried out. If it was carried out, it was lawful, but maybe it was not carried out at all. It was an infuriating answer for people who suspected that they might have been subject to investigatory powers but had no way of knowing or being certain.

It is a problem which even existing procedures sidestep. The Minister referred to ways in which notification may take place in cases where a mistake has been made. Included in the category of people to whom that might apply would be the very people he said he did not want to assist by bringing to their attention that on this occasion, they had been unsuccessfully investigated but there might well be reason to investigate them in the future. The Minister was wrong to say that the people to whom we would be imparting this information were criminals or people threatening the security of the state. If an investigation has not been successful in identifying who is involved in a radicalisation ring or in planning a kidnapping, that may well be because some of those people genuinely were not involved in any way, and some other factor—a mistaken number, for example—had drawn them into the net of the inquiry. Maybe they were known to others involved but genuinely played no part in it, and that emerges from the intelligence.

We should recognise, in considering this suggestion, that strong fears arise from uncertainty and from an inability to establish whether you have been the subject of investigation or not, when there is no reason for you to have been so subject. That of course places a very heavy burden on the commissioners, because rather like special advocates, they have to represent the concerns of people with whom they cannot check—they cannot ask, “How do you feel about this?”. At the very least, it is a salutary reminder of the importance of the processes which this Bill will introduce and of the involvement of judicial commissioners, and we may need to revisit this issue in the future.

Photo of Lord Hope of Craighead Lord Hope of Craighead Convenor of the Crossbench Peers

My Lords, I absolutely understand the motivation behind the amendment, but I wonder whether the Minister might consider another objection. He referred to the risk of the person who was notified changing his practices in the knowledge that what he was doing was being observed by one or other of these various methods. The problem may be not the individual himself but the people with whom he is in contact. One does not know how wide the web is of the group to which he belongs, and it would be so easy for that message to be passed around to people to warn them that there is a particular mechanism in play which is tapping into what he does and that those who operate in the same way as he does will be subjected to the same kind of scrutiny. I rather suggest that the problem is more wide-ranging than the Minister was telling us in his very careful reply to the amendment.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Liberal Democrat

My Lords, with great respect to my noble friends Lord Paddick and Lord Beith, I am with the Minister and the noble and learned Lord, Lord Hope, on this one. What my noble friends may have overlooked is the strength, distinction and effectiveness of the Investigatory Powers Commissioner. If there was any evidence to indicate that the commissioner, whether the present one or a future one, was likely to behave in a malign way and not reveal where improper action had taken place, then my noble friends’ concerns might have some validity. As has been said, though, the Bill is a world leader, not least in the protections that it contains. I commend to the House the provisions that have been placed in the Bill without these unnecessary amendments.

Photo of Earl Howe Earl Howe The Minister of State, Ministry of Defence, Deputy Leader of the House of Lords

My Lords, I shall briefly respond to the points that have been made. I am grateful to the noble Lord, Lord Beith, for amplifying the case that his noble friend made in introducing the amendment. In the end, we come back to the point that the noble Lord, Lord Carlile, has just articulated. We are talking here about the proper, legitimate use of the powers that the Bill contains, with robust oversight and mechanisms for redress built in, and the Investigatory Powers Commissioner is indeed an important safeguard in that context.

We are absolutely on board with the proposition that where an innocent person has been completely wrongly subject to the use of the investigatory powers—that is, where a serious error has occurred—there is no argument that that person should be informed. However, I submit that one cannot talk in the abstract about someone who has been “wrongly investigated”, which I think was the phrase used by the noble Lord, Lord Beith. You can be wrongly investigated if you are completely innocent, but you can also be wrongly investigated if there is perhaps not enough to pin on you as the culprit in a particular case but you might nevertheless, subject to further evidence, be implicated in a serious crime or a threat to national security. So we have to be clear about our terms in this context.

I come back to the fact that there are issues of principle and practice here that make this particular amendment unworkable. I also take on board the very good point made by the noble and learned Lord, Lord Hope, that it is not just an individual who could react to the news that they had been investigated in a way that would frustrate law enforcement agencies or intelligence services but a whole group of people. That in turn could affect national security, or indeed the conduct of criminals, much more widely.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

I am grateful to the Minister and to other noble Lords who have contributed to this short debate. I was heartened when the Minister started to say that he could see in principle what the amendment was driving at and therefore the merit of it to that extent. He then gave a lot of practical reasons why it would not work in practice. I have to say that I found a lot of those unconvincing, particularly when you look at the wording of the amendment and the fact that:

“The Investigatory Powers Commissioner may postpone the notification … if the Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security operation or investigation”— which would cover the point made by the noble and learned Lord, Lord Hope. Presumably the police and security services would know that this individual was part of a wider network and therefore would not inform that individual—at least, not at that stage.

So I think we are on to something here in principle, although I accept the practical difficulties that the Minister pointed out. We need to go back and rethink the amendment to address the practical problems that he highlighted and see whether we can allay his fears at Report. But, at this point, I beg leave to withdraw the amendment.

Amendment 191 withdrawn.

Clause 207: Error reporting

Amendment 191A

Moved by Baroness Hamwee

191A: Clause 207, page 159, line 37, leave out “must” and insert “may”

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, I will speak also to Amendments 191B, 191BA, 191C, 191D, 191E, 191F, 191FA, 191G, 191GA, 191GB, 191H and 191J—on this occasion, I do not think that the importance is in inverse proportion to the number of amendments, as one often finds.

Taken together, these amendments would give the Investigatory Powers Commissioner greater scope to report errors—this is not unrelated to the previous amendment—and create a more level approach by removing many of the strict limitations which would prevent many errors being reported. The objective is to ensure that the protections in place for the agencies do not restrict those for the general public in learning whether an error involving them has been made. I must thank the organisation Big Brother Watch for drawing several points to our attention.

The first two amendments simply seek to bring more objectivity to the exercise.

Amendments 191C and 191D deal with when an error should be reported. According to the Bill, that should happen when it is “a serious error” and,

“it is in the public interest for the person to be informed”.

I suggest that the default should be that a person who has been the subject of an error should be informed unless there is a good reason for him not to be. The clause does not say that the person should be informed unless it is in the public interest for the person not to be informed. In the debate on the previous amendment, the Minister talked about prejudicing an ongoing investigation. Without consulting my noble friend Lord Paddick, I would regard that as being something that would be in the public interest to create a block on information. We have the phrase “serious error”. To me, “serious” risks an ever-higher threshold being set on reporting an error. One of my amendments suggests the term “not trivial” as an alternative that would provide a proportionate response to the issue.

Amendment 191E would delete Clause 207(3). Subsection (3) provides that,

“the fact that there has been a breach of a person’s Convention rights (within the meaning of the Human Rights Act 1998) is not by itself sufficient for an error to be a serious error”.

The requirements of the Human Rights Act are a particular consideration under Clause 2, which is the privacy clause. I would regard any breach of the convention rights as something about which to be very careful. Article 8, the right to private and family life, is not absolute; there may be interference with it in accordance with the law where it is necessary in a democratic society, in the interests of national security and given other matters set out in the article. I have two questions, and it looks from the way he is writing notes as though they should be addressed to the noble and learned Lord, Lord Keen. First, how does subsection (3) affect Clause 2, the privacy clause? Can the Committee be assured that that clause is in no way weakened by Clause 207(3)? Secondly, is Clause 207(3) included in order to meet the wording of Article 8, which is that it does not apply if the breach is “in accordance with law”? Is this clause bringing that situation within the scope of being in accordance with law?

Amendment 191F requires the Investigatory Powers Commissioner to consider matters which are the subject of Clause 2, the privacy clause. This part of the Bill is not referred to in Clause 2. The safeguards to protect privacy are referred to in Clause 205(5) but that is in connection with a review under Clause 205. How does the privacy safeguard apply to this clause?

Amendments 191G and 191GA—probably best read the other way round by noble Lords who are managing to follow this, which is not a stream of consciousness but a stream of amendments—would provide that the details which the commissioner considers necessary for the exercise of the right to apply to the tribunal and “other details” should be made public and be proportionate. If an error is made, why should information about it be limited to details necessary for an application to the Investigatory Powers Tribunal? There may be other rights in play, and should the person not be informed? People do not always want to exercise a right, but nevertheless if an error has been made they should have the information about it. The second of this pair of amendments, which refers to proportionality, may not be quite right in its drafting, but I am sure that the noble and learned Lord will understand that I am seeking to find the balance between individual rights and national security and so on.

I turn to Amendment 191GB. Clause 207(9) provides that an error which prompts action under the clause is an error by a “public authority”. For this purpose, do public authorities include telecommunications officers? They should do, which is why the amendment adds them if they are not already there, because those operators carry out a very significant amount of surveillance work on behalf of public authorities.

On Amendment 191H, we are told that errors must be of a description identified in a code of practice. The important term here is “code”. The codes of practice are variable: they are not part of the primary legislation. I know I am going to be told about scrutiny of them, but they limit what will be a relevant error and I am a bit doubtful about the sort of scrutiny one is able to give to this type of instrument or document. You would have to be very diligent and on the ball to pick up the connection with this clause.

Finally, Amendment 191J suggests that the Investigatory Powers Commissioner should include these matters in a report—Clause 210, which we are coming to, provides for periodic reports—and make recommendations. I dare say I might be told that he could, of course, make recommendations arising from his reviews of relevant errors and of the definition of a relevant error, but it would be appropriate to link the reviews to the statutory report. I beg to move.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, Clause 207 is clearly of the utmost importance. It provides that if a person has been the subject of a serious error, and it would not be contrary to the public interest, the commissioner must inform them of the error and of their right to apply to the Investigatory Powers Tribunal. The judicial commissioner must provide such details as the commissioner considers necessary for the person to bring a claim. I understand the intention behind the amendments to this clause and, of course, support the principle that individuals should have the right to seek appropriate redress if they have suffered serious harm or prejudice as a result of use of the powers under the Bill. However, I do not consider that it would be appropriate for an individual to be notified if that went against the wider public interest.

The threshold that has to be reached before an individual should be notified has been considered very carefully. It has been set to ensure that the rights of the individual who may have suffered as a result of a serious error are balanced against the wider national interest of preserving the operational capabilities of the security and intelligence agencies and those of law enforcement. That is a delicate balance and it is right that the commissioner, with his independence and expertise and with all the facts in front of him—or, indeed, her—is best placed to take that decision on a case-by-case basis.

Amendment 191GB seeks to expand the definition of “relevant error” to include errors by telecommunications operators, who are not, in response to the question posed by the noble Baroness, Lady Hamwee, public authorities. The definition of what constitutes a relevant error is important for the reporting duties placed on public authorities and telecommunications operators and it is right that those persons should be under a duty to report any relevant errors to the Investigatory Powers Commissioner. The amendment is also unnecessary. Telecommunications operators already report their errors to the Interception of Communications Commissioner’s Office. The IPC can comment on any CSP errors in their annual report and can disclose information via Clause 211(2), and the Investigatory Powers Tribunal can investigate errors by telecommunication operators. I hope noble Lords will appreciate that errors by telecommunications operators are very much in the minority.

The Investigatory Powers Commissioner is under a duty to keep under review the definition of a relevant error, so will no doubt raise concerns if they feel that the definition is incorrect. The commissioner’s reports under Clause 210 may include recommendations. They do not, therefore, need to be put under a duty to make recommendations, as Amendment 191J would achieve, if the definition of relevant error is working as intended and there is nothing to recommend.

Clause 207(3) states that a breach of a person’s convention rights is not necessarily a serious error. The noble Baroness, Lady Hamwee, observed that any breach of convention rights is a matter about which we should be very careful. I do not disagree with that. She asked how subsection (3) would affect the privacy provision in Clause 2. It would in no way weaken that clause, I suggest. As for Clause 207(3), which addresses the wording of Article 8, as the noble Baroness, Lady Hamwee, observed, Article 8 refers to proceedings that are in accordance with law, and therefore the provision is there in Clause 207(3). Subsection (3) really brings about only a factual clarification. The test for whether an error is serious is whether it has caused significant prejudice or harm to the person concerned. It follows that a breach of a person’s convention rights is not necessarily, or per se, a serious error. It may well be, for the reasons already outlined, but a technical breach that does not cause harm or prejudice may not be sufficiently serious for it to be necessary to inform the person.

One of the amendments seeks to require notification where the error has not caused serious harm or prejudice but may do so in the future. Given the difficult balance that has to be struck here, it is not necessary or appropriate for persons to be informed when the error has not caused them harm or prejudice but may do so in the future. We also consider that this would place the commissioner in the difficult position of speculating. Of course, we would expect the commissioner to keep under review the circumstances related to such an error. If harm was then caused to the person, the commissioner may then decide it is necessary to notify that person.

There will be transparency about this process. Clause 207(8) means that each year the commissioner has to publish the statistics of his or her decision-making. They have to publish the number of errors that they are aware of, which proportion of these they consider to be serious, and then what proportion of those errors were so serious that the public interest was best served by an individual being informed. This provision will ensure that the information will be in the public domain and that the IPC’s approach to errors will be subject to significant scrutiny.

Amendment 191F would require the commissioner, when deciding whether to notify a person, to take into account the matters in the new privacy clause. However, I am afraid that I do not think that the considerations in the privacy clause are directly or strictly relevant to this decision. If a public authority has failed to have regard to the matters in the privacy clause, that in itself may constitute a serious error. However, that will anyway be the case under the Bill as drafted and so this amendment is not necessary on that basis.

Amendment 191FA seeks to remove the need for the IPC to consider whether it is in the public interest for the individual to be informed. If this amendment were accepted, we would end up with a situation in which an individual was informed of an error even if it was completely contrary to the wider public interest for them to be so. I do not consider that that would be appropriate.

The Bill provides that the Investigatory Powers Commissioner must provide the individual with the details the commissioner considers necessary to bring a claim in the Investigatory Powers Tribunal. That is the manner in which the individual will vindicate their right of relief and is the manner provided for in the Bill. Amendment 191G would additionally require the provision of information “to be proportionate”. We do not think that these requirements are needed and they would tend to erect an additional threshold to be met before information is provided to a potential claimant. Therefore, they might well defeat the amendment’s intent. We think it is sufficient that the person is provided with such information as is necessary.

Similarly, Amendment 191GA seeks to amend Clause 207(6) so that, when informing an affected person, the IPC would have to inform them not only of their rights to apply to the IPT but also of “other details”. Presumably, these details would be over and above what was needed by the individual to bring a claim in the Investigatory Powers Tribunal and, of course, further disclosures can be handled by the IPT in the normal way. I am not sure what these extra details would be and they have the potential to damage national security if too much information was given to an individual. I repeat the point made earlier that the Bill provides that the means by which an individual can vindicate their right is by way of an application to the IPT, and they are to be given the necessary information for that purpose. Given all those circumstances, I invite the noble Baroness to withdraw the amendment.

Photo of Lord Beith Lord Beith Liberal Democrat 4:15 pm, 5th September 2016

My Lords, these amendments address the fact that the fundamental principle in Clause 207 is very heavily qualified, even in cases where the error might be serious. I draw your Lordships’ attention to paragraph 5.42 of David Anderson’s report on bulk powers, in which he deals with errors. He rightly sets this in the context of a strong culture of compliance and self-reporting in the agencies when things go wrong. I agree with that, and it is right that we discuss it in that context. However, the fact remains that there are errors and, as the Minister pointed out, the statistics of errors are reported, so we know what they are. My concern is to be satisfied that most of these errors, if they impinge on the rights of a citizen, are notified to the citizen so that they know they can take further action.

I particularly draw attention to one case. David Anderson says in paragraph 5.42:

“In one very serious incident in 2014, an individual who deliberately undertook a number of unauthorised searches for related communications data had his employment terminated and vetting status withdrawn”.

That clearly indicates the point I made earlier: the agencies take this matter very seriously. I am interested in whether in that case the individual or individuals who may have been the victims of that improper use of the powers would be notified under the provisions of this clause, or whether the clause is so qualified that they might not be. Quite clearly, powers were abused by an individual acting without authority and wrongly, and the individual and the agency paid the price for doing so—he lost his job, which, from the limited description, seems entirely right. However, it is not clear whether the citizen, who had wrongly been the subject of this investigation, would know and would therefore be able to pursue his rights.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

Clearly, I am not in a position to comment on a particular case. However, in the context of what is said at paragraph 5.42, one has to remember that there is the further issue of whether it would have been in the public interest to make disclosure. That necessary test would have had to be met before there would have been disclosure, however serious the original breach.

Photo of The Earl of Erroll The Earl of Erroll Crossbench

My Lords, I have been listening to the debate and realised that of course people are concerned because they do not know what information is held. Sometimes people get into trouble because something is held on file and they do not know what it is. Only the subject knows what affects them and what does not. To take the example just given, where data may have been gathered by someone who is subsequently fired, that information may have been quite sensitive if revealed to someone in another organisation, and only the individual who was the subject of those unauthorised requests would know that. Therefore, this area bears examination. I am not sure how we should deal with that, but to rely just on the commissioner to know exactly how this would affect everyone would be difficult as well. It is worth thinking about this further.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, on the example my noble friend mentioned, it is hard to think that it would not be in the public interest for somebody who has been the subject of,

“a number of unauthorised searches for related communications data”,

to be notified. Of course I thank the noble and learned Lord for his detailed reply, although I am not sure whether he responded to my amendment on the code of practice.

I do not disagree about the national interest but it does not answer my point about reversing the burden so that the default position would be that there is notification unless it is not in the public interest—or, to put it another way, notification rather than notification only if it is in the public interest that somebody is informed.

On telecommunications operators and the report to the ICO, as the Bill seeks to do throughout, I sought to join up some of the dots in this landscape. Importantly, on the Human Rights Act, the noble and learned Lord says that the considerations in Clause 2 are not relevant; we may have another go at this on Report with a slightly different approach. However, he also said—I know that this was simply a turn of phrase—that Clause 207(3) does not weaken Clause 2, “I suggest”. I hope that he will be able to say that that amounts to an assurance to the Committee. Perhaps I may invite him to do that, otherwise we will certainly come back to this for an assurance.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I was expressing my thoughts upon the matter but I hope that I was entirely positive about the point.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

I may have to consider that.

Finally, I turn to the question of whether just details would give rise to a right to make a claim to the tribunal. The way this issue is described, it is almost as though the commissioner is standing in for the tribunal and making an assessment of what has happened. I think that it should be up to the individual to assess that for himself on the basis of information. However, we are in Committee and I beg leave to withdraw the amendment.

Amendment 191A withdrawn.

Amendments 191B to 191J not moved.

Clause 207 agreed.

Clause 208: Additional functions under this Part

Amendment 191K

Moved by Baroness Hamwee

191K: Clause 208, page 160, line 47, leave out “require” and insert “request”

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, this takes us to Clause 208 concerning additional functions. Clause 208(1)—there should be a limit on the size of Bills so that one can handle them easily—provides that a judicial commissioner must give the tribunal the documents and so on as the tribunal requires. The first of my amendments would substitute “request” for “require”. These words are often used as synonyms, but the use of “require” suggests that the documents and information—the matters mentioned in Clause 208(1) —are objectively necessary for the tribunal. I should have thought that the tribunal would have the scope to ask for what it wanted, because I think that one can rely on it not to be frivolous in making requests.

I should have said that I would be speaking to Amendments 191L, 192A, 192B, 192C and 194G. Government Amendment 192 is also in this group. Amendment 191L relates to Clause 210 concerning annual reports. It would require the Investigatory Powers Commissioner to report on the operation of the Act. He or she will have a great deal of experience of far more than simply the functions of the judicial commissioners, as provided for in the Bill. Again, I may be told that this is not necessary because the IPC can always make suggestions about changes to the Act or how it is applied, but in their Amendment 192 the Government have added to the list of non-exclusive items in this clause, and that very amendment suggests to us that it would be appropriate to add our words. The operational purposes are a step removed from the judicial commissioners’ functions, so I do not think that our amendment is out of place. Amendment 192A is consequential.

With regard to Amendment 192B, David Anderson, at paragraph 2.26(g) of his report, wrote:

“The operation of current bulk interception powers is subject to the audit of IOCCO, including its technical inspectorate, and will in future be audited by the IPC. The 2015 ISC Report recommended that the oversight body be given express authority to review the selection of bearers, the application of simple selectors and initial search criteria, and the complex searches which determine which communications are read. That authority is (I am assured by the Home Office) inherent in clauses 205 and 211 of the Bill”.

In a footnote he referred to the Clause 205(5) duty on the IPC to,

“keep under review the operation of safeguards to protect privacy”.

Clause 205 is a general oversight clause. Clause 211 applies to the judicial commissioner in a particular case.

I baulked at the task of trying to deal with the terms “bearers”, “simple selectors” and “initial search criteria” and “complex searches”, so I have opted for a more straightforward amendment to get on record, I hope, the assurance to which Mr Anderson refers—that the authority to review these matters is inherent in Clauses 205 and 211— together with an explanation as to the application of the authority raised by the ISC. I am fairly certain that I have provided this explanation to officials. I hope that the Minister is aware of this and that his briefing covers it—he is looking puzzled—because I sent it to the officials last week. If not, he will perhaps wish to come back to it after today.

Amendment 192 is about the definition of a “relevant person” for the purposes of the judicial commissioner’s powers under the clause. The clause includes “any member of a public authority”. However, given the definitions in other legislation, “a public authority” is not fully defined. My background, as is that of our new Home Office Ministers, is in local government. Therefore, when I hear the term “elected member”, it suggests an elected member, not the authority itself. The authorities listed in Schedule 4 suggest that the schedule is talking about the authorities, not members of authorities. So when a “relevant person” has to disclose documents, provide assistance and so on, who are we talking about? Who is a board member of, say, HMRC or a government department? I do not know and the amendment seeks to understand that term.

Amendment 194G is concerned with the commissioners keeping the performance of the board under review. The TAB annual report stated:

“At the next review the Terms of Reference should be expanded to include sponsor’s obligations, based on Cabinet Office guidance. This should include the requirement to review the performance of the TAB annually, although the scope to carry out such a review will be limited unless and until its main advisory function is called upon”.

The amendment seeks to add that comment to the Bill. I beg to move.

Photo of Lord Rosser Lord Rosser Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Transport)

Perhaps I might raise a couple of points: one on an issue raised by the noble Baroness, Lady Hamwee, and another on government Amendment 192, to which I assume the Minister will be speaking in his response.

The noble Baroness referred to paragraph 2.26(g) of the Anderson report. Without going through the whole issue, the noble Baroness, Lady Hamwee, referred to David Anderson’s sentence at the end of that paragraph, which states:

“That authority is (I am assured by the Home Office) inherent in clauses 205 and 211 of the Bill”.

I, too, would be grateful to hear the noble and learned Lord repeat that the authority is inherent in Clauses 205 and 211, as David Anderson asked, so that it is very clearly on the record. If the Minister will do that, it will save having to pursue the matter at a later stage.

As I understand it, government Amendment 192 seeks to give effect to a recommendation of the parliamentary Intelligence and Security Committee by requiring the Investigatory Powers Commissioner to publish information about the operational purposes specified on bulk grants issued under Parts 6 or 7 of the Bill during the relevant reporting period in his or her report to the Prime Minister after the end of each calendar year. I am certainly in no way opposed to the amendment but will simply ask: how extensive will the information be about the operational purposes specified during the year in warrants under Part 6 or Part 7? Who will determine whether it is in sufficient detail to meet the terms of the amendment? Will it be the Prime Minister, somebody else, or simply the author of the report?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 4:30 pm, 5th September 2016

I am obliged to the noble Baroness and the noble Lord. I will begin by responding to the two particular questions raised by the noble Lord, Lord Rosser. First, with regard to the observation made by David Anderson in his report at paragraph 2.26(g), I confirm it is the Government’s position that the authority is inherent in Clauses 205 and 211. On the provisions of Amendment 192, which I will come to, it will be in the first instance for the commissioner to determine the content of his report—but if that is not considered adequate, questions will be raised as to whether further particulars should be given.

I come back to Amendment 191K to Clause 208, moved by the noble Baroness, Lady Hamwee, which relates to the relationship between the commissioner and the Investigatory Powers Tribunal. I believe that the amendment is unnecessary. The commissioner will be under a duty to provide all documents, information and assistance that the tribunal needs for its investigation, consideration or determination of any matter. If the tribunal judges that it requires assistance, the commissioner is under a duty to provide it. Just as one wishes to rely on the tribunal’s judgment, so one wishes to rely also on the judgment of the commissioner. That is why it is sufficient in these circumstances that the word “require” should be provided for in the clause. In reality, of course, we expect the commissioner and the tribunal to have a strong working relationship, under which the tribunal will be free to call upon the expertise of the commissioner and their staff as necessary.

I appreciate the intention behind Amendments 191L and 192A to Clause 210 on the reporting duties of the commissioner—but, again, I believe that they are unnecessary. Currently, the Investigatory Powers Commissioner must make an annual report about the functions of the judicial commissioners and may make recommendations about their functions. Clause 205 is clear that the function of the commissioner is to review the use of the powers in the Bill by those who are authorised to use them. Therefore, the content of the commissioner’s annual report will be about the operation of the Act once it is in force.

Government Amendment 192 brings forward a change to Clause 210 to make it clear that the commissioner must publish a summary of the use of operational purposes in each of his or her annual reports. No doubt we shall talk more about operational purposes in the coming days in Committee, but this amendment will enhance the oversight and transparency of the use of operational purposes, as the noble Lord, Lord Rosser, observed. I hope that I have given sufficient clarification of how that report should proceed. Clearly, we will be open to further discussion about that as we go forward.

With respect to Amendment 192C, Clause 211(7)(a) places a duty on,

“any member of a public authority”,

to provide assistance to the judicial commissioners. The Government intend for this duty to be a broad one, encompassing everyone working for that public authority. But I note the observations of the noble Baroness, Lady Hamwee, and if that intention is not clear from the drafting, we will reconsider the clause. I therefore invite the noble Baroness to not move her amendment.

Amendment 194G seeks to amend Clause 220, which replaces Section 13 of the Regulation of Investigatory Powers Act 2000 and provides for the continued existence of the Technical Advisory Board. As I mentioned in previous Committee sessions, the board will advise the Secretary of State on cost and technical grounds if a notice given under Parts 4 or 9 of the Bill is referred by a telecommunications or postal operator for review. The board comprises a balanced representation of those on whom obligations may be imposed by virtue of notices—namely, telecommunications operators—and of those persons entitled to apply for warrants or authorisations under the Bill. These individuals will have a detailed technical understanding of the capabilities provided for by the notices.

Amendment 194G would provide for the Investigatory Powers Commissioner to monitor and report on the performance of the board. This, I suggest, is unnecessary. The Technical Advisory Board and the Investigatory Powers Commissioner conduct very different functions during the review process. The primary role of the board is to advise the Secretary of State on cost and technical issues during a review. Should the Secretary of State decide to vary or confirm the effect of the notice after considering this advice, the Investigatory Powers Commissioner must review and approve the Secretary of State’s conclusions as to the necessity and proportionality of the notice.

Noble Lords will see that the board will provide a different viewpoint from that of the commissioner during a review. Indeed, the robustness of this safeguard lies precisely in the fact that the board and the Investigatory Powers Commissioner play distinct roles in the review process. As such, it simply would not be appropriate for the Investigatory Powers Commissioner to oversee the work of the board.

It is of course right that the Government keep under review the performance of their non-departmental public bodies, including the Technical Advisory Board. This is part of the normal process of ensuring that those bodies adhere to best practice: for example, in their management of resources. I assure noble Lords and the noble Baroness, Lady Hamwee, that the Home Office, as sponsor of this board, already does so, adhering to Cabinet Office guidance in the process. The board’s annual report is published on the internet for public scrutiny.

Although I consider that oversight of the board by the commissioner would be inappropriate, I wish to make it clear that the Bill already provides for the commissioner to comment on the work of the board in his or her annual report. Clause 210 allows the Investigatory Powers Commissioner to make recommendations about any matters relating to the commissioner’s functions. The commissioner has oversight of the giving of notices and can therefore make such recommendations as he or she considers appropriate on matters relating to notices, including the role of the Technical Advisory Board in respect of such notices.

I hope that this satisfies the noble Baroness that oversight of the board’s performance by the Investigatory Powers Commissioner really is not necessary. It is my view that the scrutiny of the board’s performance and any changes to its membership continue to be overseen by the sponsoring body, the Home Office, and its Secretary of State, and not by another independent body.

It is also worth noting that, to date, the board has never been required to fulfil its statutory role—hence there has been very little work to scrutinise. This reflects the close consultation between the Government and communications service providers before a notice is given.

I appreciate that Amendment 192B intends to highlight the importance of safeguards to protect privacy. I share this sentiment, and there are safeguards to protect privacy running through the Bill. However, it is for those who are actually utilising the investigatory powers to ensure that safeguards to protect privacy are applied. It is then the job of the judicial commissioner to ensure that they are actually being correctly applied. The Government introduced an amendment to Clause 205(5) to make it clear that the commissioner must keep under review, by way of audit, inspection and investigation, the operation of safeguards to protect privacy.

In these circumstances, I invite the noble Baroness, Lady Hamwee, to withdraw the amendment.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

My Lords, I am aware that there are a number of noble Lords in the Chamber for the next business, so I will be very brief and mention just a couple of things. On the question of a “public authority”, will the Minister, in one of the very helpful letters that we receive following Committee days, tell us the Home Office’s further thoughts on this to save a possible further amendment at Report?

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

I will endeavour to ensure that that is done before Report in order that the position can be clarified.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

I am grateful for that. My next request is for an explanation of the assurance given with regard to paragraph 2.26(g) of David Anderson’s review. I do not doubt the assurance, but it would be helpful to understand the logic.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

Again, I am content to write to the noble Baroness on that point.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat

I am very grateful for both those assurances and beg leave to withdraw the amendment.

Amendment 191K withdrawn.

Clauses 208 and 209 agreed.

Clause 210: Annual and other reports

Amendment 191L not moved.

Amendment 192

Moved by Lord Keen of Elie

192: Clause 210, page 163, line 28, at end insert—“( ) information about the operational purposes specified during the year in warrants issued under Part 6 or 7,”

Amendment 192 agreed.

Amendment 192A not moved.

Clause 210, as amended, agreed.

Clause 211: Investigation and information powers

Amendments 192B and 192C not moved.

Clause 211 agreed.

House resumed.