Relevant public authorities and designated senior officers

Investigatory Powers Bill – in a Public Bill Committee at 9:25 am on 19th April 2016.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 9:25 am, 19th April 2016

I beg to move amendment 135, in clause 61, page 49, line 32, leave out subsections (1) and (2) and insert—

“(1) For the purposes of this Part, a relevant public authority is—

(a) a police force maintained under section 2 of the Police Act 1996,

(b) the Metropolitan police force,

(c) the City of London police force,

(d) the Police Service of Scotland,

(e) the Police Service of Northern Ireland,

(f) the British Transport Police Force,

(g) the Ministry of Defence Police,

(h) the Royal Navy Police,

(i) the Royal Military Police,

(j) the Royal Air Force Police,

(k) the Security Service

(l) the Secret Intelligence Service,

(m) the GCHQ,

(n) the National Crime Agency and

(o) the Criminal Cases Review Commission.

(2) For the purposes of authorisations sought pursuant to section 53(7)(g) a relevant public authority also includes—

(a) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 whose functions include the provision of emergency ambulance service,

(b) a fire and rescue authority under the Fire and Rescue Services Act 2004,

(c) the Northern Ireland Ambulance Service Health and Social Care trust,

(d) the Northern Ireland Fire and Rescue Service Board

(e) the Scottish Ambulance Service Board and

(f) the Welsh Ambulance Services National Health Service Trust.

(3) For the purposes of authorisations sought pursuant to Section 53(7)(h), a relevant public authority also includes—

(a) the Criminal Cases Review Commission and

(b) the Scottish Criminal Cases Review Commission”.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

With this it will be convenient to discuss amendment 236, in clause 61, page 49, line 34, leave out subsection (2) and insert—

“(2) For the purposes of this Part, a relevant public authority is—

(a) a police force maintained under section 2 of the Police Act 1996,

(b) the Metropolitan Police Force,

(c) the City of London Police Force,

(d) the Police Service of Scotland,

(e) the Police Service of Northern Ireland,

(f) the British Transport Police Force,

(g) the Ministry of Defence Police,

(h) the Royal Navy Police,

(i) the Royal Military Police,

(j) the Royal Air Force Police,

(k) the Security Service,

(l) the Secret Intelligence Service,

(m) the GCHQ,

(n) the National Crime Agency,

(o) the Criminal Cases Review Commission, or

(p) the Scottish Criminal Cases Review Commission.

(2A) For the purposes of authorisations sought pursuant to 53(7)(g), a relevant public authority also includes—

(a) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 whose functions include the provision of emergency ambulance service,

(b) a fire and rescue authority under the Fire and Rescue Services Act 2004,

(c) the Northern Ireland Ambulance Service Health and Social Care trust,

(d) the Northern Ireland Fire and Rescue Service Board,

(e) the Scottish Ambulance Service Board, and

(f) the Welsh Ambulance Services National Health Service Trust.

(2B) For the purposes of authorisations sought pursuant to Section 57(3)(h), a relevant public authority also includes—

(a) the Criminal Cases Review Commission and

(b) the Scottish Criminal Cases Review Commission.”

This amendment ensures that only police forces and security agencies may request a communications data warrant, except where the warrant is issued for the purpose of preventing death, in which circumstances emergency and rescue services also fall within the definition.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

It is a pleasure to continue to serve under your chairmanship, Ms Dorries.

The clause sets out the relevant public authorities and designated senior officers for the purposes of part 3 of the Bill—in essence, those who may exercise the powers of obtaining communications data throughout this part. Last week, I drew attention to schedule 4 to the Bill and, in particular, to the large number of public authorities listed as “relevant”, including Food Standards Scotland, the Food Standards Agency, the Gambling Commission, the Office of Communications and the Northern Ireland Fire and Rescue Service Board. The list of relevant public authorities in schedule 4 is very long.

I also drew attention to the designated senior officers, who are authorised to obtain communications data. They are listed in the second column in schedule 4. To remind the Committee, if we take the Food Standards Agency, the designated senior officer is a grade 6 officer; if we take the Northern Ireland Fire and Rescue Service Board, the officer is the watch manager of control; and, to take one more example, for the Office of Communications, the officer is a senior associate. The point that I made last week was that, where there are wide powers of retention under the Bill, which we will come to later, the threshold for accessing the data is vital. The number of relevant public authorities is too wide and the level of the designated senior officers too low to provide a proper safeguard.

The amendment is intended to address that defect by setting out in the legislation a narrower set of relevant public authorities, listed in paragraphs (a) to (o) of proposed new subsection (1). It is a shorter and tighter list, but would none the less be a functional and effective one. Proposed new subsections (2) and (3) are an attempt to tie in other relevant public authorities to the particular power that would be appropriate for them to exercise. The relevant public authorities for the purposes of authorisation under clause 53(7)(g) are listed under proposed new subsection (2) and, similarly, those for clause 53(7)(h) are listed under proposed new subsection (3).

The amendment would tighten up the drafting of the Bill to limit the number of relevant public authorities and tie the lists more closely to the particular objectives set out in clause 53. Logically, therefore, it follows from the point that I was making last week and anticipates the one that I will make later this morning about the scope of the retention powers.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

There is one small difference between amendment 135, which was tabled by the Labour party, and amendment 236, which was tabled by the Scottish National party. Amendment 236 includes, in proposed new subsection (2)(p), the Scottish Criminal Cases Review Commission, which is a separate body. I say that for completeness.

Photo of Robert Buckland Robert Buckland The Solicitor-General

It is good to serve under your chairmanship once again, Ms Dorries. I welcome the spirit in which the amendments have been tabled. There is a common sense of purpose among Committee members to ensure that the ambit of the authorities that have power to access communications data should always be strictly scrutinised. In that spirit, the Government have progressively reduced the number of such authorities. They have reviewed that number and keep it under review. The list of such authorities in the Bill is not simply a replication of the list in the Regulation of Investigatory Powers Act 2000, but has been the subject of careful consideration.

It has been judged that it is necessary for those public authorities to be allowed to access communications data for a narrow range of purposes. For example, insider trading needs to be investigated, and the Financial Conduct Authority is the body to do that. The Maritime and Coastguard Agency will need access to such information to locate people lost at sea. Bodies such as the Food Standards Agency and the Department for Work and Pensions have been given clear remits by Parliament to investigate certain types of criminality and civil matters, because such investigations often require dedicated resources and specialist knowledge. To unduly restrict those agencies in their work would cause an imbalance.

I know that the hon. and learned Gentleman shares those views, because in his previous incarnation as the Director of Public Prosecutions he made it clear, for example, that communications data should be available to organisations such as the DWP in investigating any abuse of the welfare system or other public funds. I therefore know that he has a common purpose in mind.

The Bill for the first time brings together all the public authorities with access to communications data in primary legislation. That is an important and welcome step up from previous practice. I should be clear that all the authorities listed in the Bill were required to make the case that they needed the power to access communications data. Therefore, as I have outlined, the list in the Bill is not just a blind replication of existing lists. As I have said, we removed 13 public authorities from the list in February last year. Amendments that were tabled by my right hon. Friend the Minister for Security and that we will debate shortly will introduce further restrictions on certain public authorities. That shows that the Government are taking great care in this area.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I wonder whether the Solicitor General can assist the Committee, either now or at some later stage, by setting out some detail about how the case was made for each of the agencies, and in particular why the designated senior officer grades were chosen. That is quite a complicated question, but it is striking, from the Committee’s point of view, that a watch manager is listed as a designated senior officer when one is talking about accessing communications data. I have already given other examples.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I shall try to assist the hon. and learned Gentleman. I will not be able to give him an exhaustive list here and now, as he is aware, and I am pretty sure that the information that he seeks is available in some form. We will, of course, help to signpost him to it.

I make the simple case about watch managers that there will be emergency situations, such as missing persons inquiries, in which fleetness of foot is essential. Suggesting that a more senior level of management would be appropriate risks important data being lost or not being available in those emergency situations. There are certain key situations where we are talking about the protection of life in which the balance needs to be struck in the way that we suggest in schedule 4.

With regard to schedule 4, public authorities cannot all acquire communications data for the full range of statutory purposes. Each can acquire data only for the purposes for which it has justified a need for them. That maintains the essential principle of proportionality, so that the public authorities concerned only have the powers for which they have made a compelling case.

To give some examples of the changes from RIPA, ambulance services will no longer be able to acquire communications data for the purposes of preventing and detecting crime, and the Prudential Regulation Authority will no longer be able to acquire communications data in any circumstances. In addition, the Bill allows for the ability of a public authority to access communications data to be removed, should a public authority cease to have a requirement to make those acquisitions. That is a very important check and balance.

To fill in some more detail in respect of the question the hon. and learned Member for Holborn and St Pancras asked about the detailed justification for each public authority, each authority has been required to provide evidence of utility and the need to acquire communications data. That included detailed consideration of the level of authorising officers, so that we got the balance right in terms of appropriateness.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

I note that the Solicitor General spoke of details of the “utility”, but the Digital Rights Ireland case sets out that states must limit the number of persons authorised to access and use this sort of data to what is “strictly necessary”. Does he agree that a long list of authorities, many of whose primary functions are wholly unrelated to law enforcement in the context of serious crime, is inconsistent with the requirement of strict necessity laid down in the Digital Rights case?

Photo of Robert Buckland Robert Buckland The Solicitor-General

I am grateful to the hon. and learned Lady and can correct the record in this way. I should have used the phrase “utility and need”. I think that important word, to which she quite rightly draws my attention, answers the point. In one of the examples I have given, where a need was not demonstrated by the PRU, the power was removed entirely.

Among the bodies that the amendment seeks to remove are Her Majesty’s Revenue and Customs and the Ministry of Defence. I am afraid that both bodies are intercepting agencies, and communications data are part of their work in targeting interception so that the powers which we all accept are intrusive are used in as tightly constrained circumstances as possible. My worry is that the amendment, however well intentioned, might well have the contrary effect on that important targeted work and the need for those organisations to target their activities.

I remind the Committee that David Anderson QC concluded in his report:

“It should not be assumed that the public interest is served by reducing the number of bodies with such powers, unless there are bodies which have no use for them.”

The Joint Committee on the Draft Investigatory Powers Bill also recognised communications data as

“an important tool for law enforcement and other public bodies.”

For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I am grateful to the Solicitor General. There is obviously a concern about the threshold and safeguards for accessing communications data. That is what the Digital Rights case is all about; it is what the Tom Watson and David Davis case will test. To some extent, until that case is concluded, we will not know in specific terms what the safeguards are, although, as I foreshadowed last week, my view is that the requirements for safeguards will tighten as time goes by. It may not be exactly as the divisional court set out.

The Solicitor General has indicated that he will point me to the material that at least summarises why it was thought that each body should be on list. I am grateful for that and will consider it carefully. Will he also, either in a letter or some other appropriate form, set out the test that was applied in clear terms, so that it can be contrasted with the Digital Rights case and any outcome of the David Davis case in due course? I acknowledge that the hon. and learned Gentleman makes a powerful point about Her Majesty’s Revenue and Customs and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

We come to the question that clause 61 stand part of the Bill.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

According to the list I have, Ms Dorries, amendment 236 is also to be dealt with. As I explained, there are small differences between amendments 135 and 236.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

Amendments 135 and 236 were grouped together.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

I realise that, but I have not been asked whether I want to put amendment 236 to a vote.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

Amendment 236 is not formally before the Committee. As I said in the opening notes at the beginning of the Committee, if you wanted to put it to a vote, you had to make me aware of that at the beginning.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

For the assistance of the Committee, I and Mr Starmer have spent a long time discussing who would lead on which clause, in order to speed matters up. I wish to put amendment 236 to a vote, although I did not speak to it. I would like that to be recorded in the minutes. If I am to be prevented from doing so, so be it.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

Although this is unusual, as we have not actually moved on we can vote on amendment 236 so that the matter is transparent, with the leave of the Committee.

Aye.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

Ms Cherry, would you like to speak to your amendment before the Committee votes?

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

I have nothing to add to what Mr Starmer said and the points that I made in my intervention.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

On a point of order, Ms Dorries. It may be that I am in error, and if I am I apologise and will take your chastisement. I thought I was correct in believing that when we are in a Public Bill Committee, it is as if we are having a debate on the Floor of the House and we are therefore referred to as the hon. Member or hon. Gentleman or whatever, rather than using Christian or first name and surname. Can you confirm that? I know some people get frightfully anxious about all the traditions of the House, but I just wanted to make sure that my understanding is correct.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

On that point, Ms Cherry and I had an informal discussion outside the Committee earlier this morning.

Amendment proposed: 236, in clause 61, page 49, line 34, leave out subsection (2) and insert—

“(2) For the purposes of this Part, a relevant public authority is—

(a) a police force maintained under section 2 of the Police Act 1996,

(b) the Metropolitan Police Force,

(c) the City of London Police Force,

(d) the Police Service of Scotland,

(e) the Police Service of Northern Ireland,

(f) the British Transport Police Force,

(g) the Ministry of Defence Police,

(h) the Royal Navy Police,

(i) the Royal Military Police,

(j) the Royal Air Force Police,

(k) the Security Service,

(l) the Secret Intelligence Service,

(m) the GCHQ,

(n) the National Crime Agency,

(o) the Criminal Cases Review Commission, or

(p) the Scottish Criminal Cases Review Commission.

(2A) For the purposes of authorisations sought pursuant to 53(7)(g), a relevant public authority also includes—

(a) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 whose functions include the provision of emergency ambulance service,

(b) a fire and rescue authority under the Fire and Rescue Services Act 2004,

(c) the Northern Ireland Ambulance Service Health and Social Care trust,

(d) the Northern Ireland Fire and Rescue Service Board,

(e) the Scottish Ambulance Service Board, and

(f) the Welsh Ambulance Services National Health Service Trust.

(2B) For the purposes of authorisations sought pursuant to Section 57(3)(h), a relevant public authority also includes—

(a) the Criminal Cases Review Commission and

(b) the Scottish Criminal Cases Review Commission.”—

This amendment ensures that only police forces and security agencies may request a communications data warrant, except where the warrant is issued for the purpose of preventing death, in which circumstances emergency and rescue services also fall within the definition.

Question put, That the amendment be made.

The Committee divided:

Ayes 2, Noes 9.

Division number 11 Christmas Tree Industry — Relevant public authorities and designated senior officers

Aye: 2 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Question put, That the clause stand part of the Bill.

The Committee divided:

Ayes 9, Noes 2.

Division number 12 Christmas Tree Industry — Relevant public authorities and designated senior officers

Aye: 9 MPs

No: 2 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly agreed to.

Clause 61 ordered to stand part of the Bill.

Schedule 4