Use of a single point of contact

Investigatory Powers Bill – in a Public Bill Committee at 10:00 am on 19 April 2016.

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Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs) 10:00, 19 April 2016

I beg to move amendment 241, in clause 67, page 53, line 8, leave out subsections (4)(a) and (b) and insert—

“(a) is an officer appointed by the Investigatory Powers Commissioner;

(b) works subject to the supervision of the Investigatory Powers Commissioner; and is responsible for advising—

(i) officers of the relevant public authorities about applying for authorisations; or

(ii) designated senior officers of public authorities about granting authorisations.”

The amendment provides for the SPoC scheme to be operated under the authority of the Investigatory Powers Commissioner.

The clause deals with the use of a single point of contact. The purpose of the amendment is to provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. The Bill, as it currently stands, provides that authorisations shall be largely self-approved by officials and officers of public bodies, subject to the advice of a single point of contact. The single point of contact is within the organisation and is responsible for advising on the lawfulness of the authorisation. Local authorities, police forces and public bodies that are too small to have their own single point of contact are required by the Bill to enter into collaboration agreements with others and if the amendment is successful, it will necessitate leaving out clauses 69 to 71.

The Scottish National party’s preferred model would be judicial authorisation for access to communications data, as addressed in the amendments to clause 53 that we discussed in Committee last week—I have no doubt that they will be revisited on Report. But if we are to be stuck with the current model, we in the SNP think it only fair and right that the Bill should provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. In my submission, that would give the sort of oversight that we were promised in advance of the Bill but that is absent from the Bill itself.

It is my argument that it is completely unacceptable for a public authority to be able to authorise itself to have access to revealing personal data. In making this argument, I do not seek to impugn the integrity of public officials or, indeed, senior employees of our law enforcement agencies, but rather to point out the glaring reality that the primary concern of such persons will relate to the operational capacity of their agencies. That is simply a matter of organisational culture: it is perfectly understandable, but it militates in favour of independent third-party authorisation. If we are to have an Investigatory Powers Commissioner, why not give him or her that power, so that there will be meaningful oversight?

In my argument, the value and credibility of any single point of contact model would be enhanced by ensuring its independence from the public authority that seeks to use the intrusive powers given under this part of the Bill. That would also remove the need for collaboration agreements, because the single point of contact advisers would be centralised within the IPC framework. It would lift a great deal of bureaucracy out of the public organisations and law enforcement agencies by putting oversight in the hands of the Investigatory Powers Commissioner, who would then be able to encourage, across the board, a standardised approach to the advice given and, importantly, consistency in the application of the law.

The provisions currently in the Bill consolidate existing practice on the guidance issue for single points of contact and the self-authorisation regime, but the Joint Committee on the draft Communications Data Bill recommended consolidation under the leadership of police forces. However, I would argue that, while the single points of contact remain embedded within the same organisations that seek to access this intrusive material, they cannot be considered to be independent for the purposes of the role they play in the authorisation process. If they are not independent, we risk passing legislation that conflicts with European law, which, for the time being at least, applies in the United Kingdom.

The amendment would mean that the single point of contact framework, if continued, would operate as part of an overriding single oversight body, under the auspices of the Investigatory Powers Commissioner. As I said, that would create a single consistent body of staff, capable of providing help, assistance and guidance before the final determination of any application. To my mind, that is a highly sensible and appropriate approach; I would like to know why the Government are not prepared to support it.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I am grateful to the hon. and learned Lady for her amendment and her observations, because they give me an opportunity to remind the Committee how important the single point of contact system is, and how envied it is by other parts of the world. Those are not just my words; paragraph 9.93 of David Anderson’s important report, “A Question of Trust” states:

“As to the authorisation of communications data requests, the police took a good deal of pride in the SPoC system, which was said to be ‘the envy of many friendly countries’.”

Mr Anderson makes a particularly important observation in paragraph 9.94, when he states:

“Within law enforcement generally, it was felt that SPoCs should have strong relationships with the investigators and this was more likely to happen where they were part of the same organisation, working to the same goal (albeit with distinct and independent responsibilities).”

I will finish the paragraph:

“Their effectiveness as a ‘guardian and gatekeeper’ could however diminish were they to become simply part of the investigation team”.

Here the hon. and learned Lady’s point is a strong one, but it has to be observed in the right context, which is that of the investigation. I absolutely agree with her about the importance of having an arm’s length approach, which is why the designated senior officer who is allowed to authorise an application must not be part of that operation. The draft code of practice contains helpful guidance from paragraph 4.28 to paragraph 4.47, and paragraph 4.48 then deals with the question of the designation of a single responsible officer.

Therefore, in the light of all the careful consideration that has been given to this tried and tested system, I argue that the balance is being properly struck here. Indeed, the extensive benefit and the safeguarding mechanism which the SPOC role brings to this process has been recognised by the Interception of Communications Commissioner, who in his report of March 2015 described the SPOC role as “a stringent safeguard”. These are people who are specially trained in the acquisition of communications data.

Photo of Suella Fernandes Suella Fernandes Conservative, Fareham

I reiterate that this point was made very clearly by Michael Atkinson of the National Police Council’s Data Communications Group. He described the role of the SPOC as being “independent of the investigation” and subject to IOCCO inspections. They would also be regularly overseen, scrutinised and challenged on their work. So there is a very robust system of oversight and review, is there not?

Photo of Robert Buckland Robert Buckland The Solicitor-General

My hon. Friend is absolutely right. It is that oversight which I argue establishes the essential checks and balances here, to prevent the sort of abuse about which all of us on the Committee would, rightly, be worried. These are sensitive matters.

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

At the Scottish Bar we often use the phrase “nemo iudex in sua causa”, which means “no man should be a judge in his own cause”. I am sure that that is used at the English Bar as well. Will the Solicitor General tell me how he is able to elide this principle, as the SPOC comes from the same organisation as the initial authoriser?

Photo of Robert Buckland Robert Buckland The Solicitor-General

I thought I had made it clear to the hon. and learned Lady that the key word here is investigation. Those officers who are responsible for the course of the investigation are not the SPOC. That person is independent and they are at arm’s length. They are therefore able to exercise the objectivity and the sense of self-discipline that is essential if public authorities are to retain our confidence. It is all underpinned by the scrutiny of the IOCCO. In my submission, to move away from a tried and tested system that is internationally recognised would be, with regret, a mistake.

With respect to the hon. and learned Lady, I do not see how the process would be enhanced if it were to be done in the way that the amendment suggests. We already have oversight, as I have indicated. In fact, my concern is that the expertise within public authorities of how best to facilitate these sort of requests could be diminished, and there could be a detrimental impact on the relationships with both the service providers and the investigators. My worry is therefore that the understandable aims behind this amendment could be frustrated in a way that is perhaps not being properly foreseen.

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

On a connected point, the evidence from Jo Cavan at IOCCO has expressed concern about the inclusion of subsection (3)(b), “the interests of national security”. I would like to probe this. It has been suggested that the justification for deeming the interests of national security to be almost an exceptional circumstance is unclear. What is the justification?

Photo of Robert Buckland Robert Buckland The Solicitor-General

In a nutshell, we are talking here about rare and exceptional circumstances where it might not be possible to consult an SPOC. Where we are talking about national security, I would envisage a risk to the nation that all of us would understand if we saw it—rather like an elephant in a room. As I have said, though, it is couched with particular regard to the governing part of that clause, which is exceptional circumstances. Therefore the hon. Lady can be reassured that this is not some sort of back door by which this power would be misused. For all the reasons I have advanced, I urge the hon. Lady to withdraw the amendment.

Question put, That the amendment be made.

The Committee divided:

Ayes 2, Noes 9.

Division number 19 Christmas Tree Industry — Use of a single point of contact

Aye: 2 MPs

No: 9 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly negatived.

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

I beg to move amendment 138, in clause 67, page 53, line 26, at end insert—

‘( ) the public interest in the protection of privacy and the integrity of personal data; and

( ) the public interest in the integrity of communications systems and computer networks.”

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

With this it will be convenient to discuss amendment 140, in clause 67, page 53, line 38, at end insert—

‘( ) the public interest in the protection of privacy and the integrity of personal data; and

( ) the public interest in the integrity of communications systems and computer networks.”

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

The two amendments can essentially be read together: they bite on clause 67(5) and (6) respectively. The purpose of this clause, as I understand it, is to provide a mandatory consultation exercise for designated senior officers, with a single point of contact. That will be particularly important where the designated senior officer has little if any experience of authorising and will therefore be particular important in some of the smaller relevant public authorities, which may not exercise this power on a regular basis, although I realise it is mandatory in all cases. The point of amendments 138 and 140 is to put in the Bill a requirement that, in the course of that consultation exercise, the single point of contact advises not only on issues such as appropriate methods, costs, resource implications, unintended consequences and so on, but, as set out in amendment 138, on

“the public interest in the protection of privacy and the integrity of personal data; and…the public interest in the integrity of communications systems and computer networks.”

Such an amendment is necessary because there is a lack of an overarching privacy provision that can be read into each of these clauses. When a designated senior officer is being advised, it would be prudent and sensible for them to be advised not only about costs and resources, but about privacy and integrity, which are critical to the operation of the Bill.

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

The amendments are jointly supported by Labour and the Scottish National party.

Throughout this part of the Bill, public authorities and other decision makers are placed under a duty to consider a range of factors connected to the decision to access retained communications data. Those factors include cost and other resource implications and

“any issues as to the lawfulness of the proposed authorisation.”

These amendments include a specific duty to consider the public interest and the protection of individual privacy—that is, the protection of the privacy of our constituents; and the security of communications systems and computer networks—that is, the security of our constituents’ private data. Both David Anderson, in his independent review, and the Intelligence and Security Committee, in its report on the draft Bill, emphasise the importance of privacy principles and the need to make clear the legality of the use of surveillance powers in this new legislation.

Although we are focusing on a specific amendment to increase safeguards for individual privacy and security of data, we are concerned that throughout the Bill there appear to be statutory duties on public agencies, officials and agents, and on judicial commissioners, to consider factors relevant to national security and the prevention and detection of crime, and the effectiveness of powers and resources expended, but there is no specific treatment of privacy standards and the public interest.

While the clauses that these amendments are attached to refer to

“any issues as to the lawfulness” of the powers, the vagueness of this instruction is, in my submission, very contradictory. Surely it must be the first consideration of any individual considering the exercise of powers under the Bill that they should be legal. Legality should be a first consideration; treating it as just one at the end of a list of other factors to be considered seems entirely inappropriate. In this regard, it would be of huge assistance if the Minister could give us a fuller explanation of why statutory duties in the Bill have been approached in this way, with legality as a final duty; of the objectives of including the factors as provided in the manner in which they are drafted; and of why the protection of privacy and the public interest in the integrity of communications systems and computer networks will not be mentioned unless this amendment is made.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

The hon. and learned Member for Holborn and St Pancras is right about the purpose of the clause, and I understand the reason for the amendments. The single point of contact may advise the applicant and designated senior officer of the cost and resource implications for the public authority, and the communications service provider of any unintended consequences of the proposed authorisation and any issues surrounding the lawfulness of the proposed authorisation—one of the points that the hon. and learned Member for Edinburgh South West raised.

The points about cost and lawfulness that the hon. and learned Lady raised are certainly part of the advice that the applicant should receive, as well as the appropriate methods to obtain the data they are seeking, while the designated senior officer will be advised on the practicality of obtaining the data sought. Bear in mind that the single point of contact can already advise on the lawfulness of proposed authorisations. For authorisation to be lawful, it has to be both necessary, for one of the statutory purposes in the Bill, and proportionate in all circumstances.

The point the hon. and learned Lady made about privacy is a reprise of the debate we had at the very beginning of our consideration, when I argued—I thought pretty convincingly, but clearly not—that privacy is woven through the Bill. For the sake of emphasis, I say again that the protection of privacy and personal data must be a key consideration in gauging proportionality.

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

I hear what the Minister is saying. As I understand it, he is saying that the issues highlighted by the amendments will be taken into account, so why not say so? What is the detriment in saying so and making it crystal clear? This is for the comfort of the many constituents and members of the public who are concerned about the privacy and integrity of their data, so why not say so in the Bill? What possible detriment could there be in following that course of action?

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

Let me rehearse the argument that I used originally, because despite what I described as its persuasiveness, it clearly was not sufficiently well articulated to convert the hon. and learned Lady to the cause of virtue. Let me rearticulate it: if privacy is separated out in the way that some argue we should have done and might do now, and it is identified in the desiccated way that those people suggest, its significance is curiously—one might even go so far as to say paradoxically—weakened as a defining characteristic of the purposes of the legislation. However, it is worth emphasising the point I made a few moments ago about the need to tie personal interests and the protection of private data in to the test of proportionality in the draft codes of practice.

I draw attention to the codes of practice at paragraph 3.18—the heading is “Further guidance on necessity and proportionality”—which says:

“An examination of the proportionality of the application should particularly include a consideration of the rights (particularly to privacy and, in relevant cases, freedom of expression) of the individual and a balancing of these rights against the benefit to the investigation.”

That could not be plainer in doing precisely what I have described, which is to look at the right to privacy—I do not like to use the word “right”; I prefer to use “entitlement”—the entitlement to privacy with the functioning nature of an investigation into the effectiveness of the process.

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

As I understand it, the Minister is saying that privacy is so important and so woven into the Bill that to single it out would weaken its importance. Surely lawfulness is equally important and that has been singled out by the draftsmen in subsection (6)(d).

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

I have already argued that lawfulness is, again, an underpinning requirement in these terms. Just to be absolutely categorical, the designated senior officer is the one who makes the final assessment of necessity and proportionality, as required by the code of practice. They must have a working knowledge of legislation, specifically that which relates to necessity and proportionality and the entitlements of individuals in those terms.

I just think that the combination of the Bill and the codes of practice render the amendment unnecessary. I emphasised previously that the codes of practice are drafts and the final code of practice will reflect some of this Committee’s considerations. If I may turn my attention momentarily from the hon. and learned Lady, if the hon. and learned Member for Holborn and St Pancras feels that the code should be strengthened in that regard—I re-emphasise that I think they are pretty clear—I would of course be prepared to hear his argument. [Interruption.] Before I move on to the amendment about system integrity, I can see that he is champing at the bit, or maybe I am misinterpreting him.

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

I was going to cover this in my reply, but the argument the Minister is now putting is unpersuasive, and I am afraid I found it unpersuasive a week ago. In practical reality, when a senior designated officer gets to lawfulness, they will be thinking necessity and proportionality, and they are likely to be advised about that. That is the test for restricting privacy. What we do not see is the statement of privacy, either in this subsection or an overarching clause—I have been trying to articulate what is nagging away as to why the overarching clause is needed. In the end, real people, in real time, will find that lawfulness will mean going back to check necessity and proportionality. That is welcome and right, but they are not the definition of privacy; they are the permitted restrictions of it.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

That is a fair argument and that is why it is necessary to supplement what the hon. and learned Gentleman describes with the code of practice in the way that I have described. My invitation to him was that if he accepts that, he might want to focus attention on the code of practice to see whether it is as good as it might be. I drew attention to the provision on the necessity and proportionality. It might be that the draft could be further improved. After all, nothing, at least on earth, is perfect, and certainly no Government would want to claim perfection—

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

I was about to say that perfection was an intellectual construct, but I am happy to give way on that note.

Photo of Suella Fernandes Suella Fernandes Conservative, Fareham

Is it not impossible that privacy will not be considered as part of any application? Proportionality runs through the authorisation regime, and if a single point of contact has to apply a proportionality test, by definition and necessity, he will incorporate a wide-ranging consideration of the impact on privacy.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security) 10:30, 19 April 2016

Yes, I agree. That is an elegant re-articulation of the point that I was imperfectly making about the intrinsic relationship between a consideration of personal interest and the test of proportionality. For the exercise of the power to be proportionate, it must take proper account of the balance that I described between personal interest and investigative effectiveness.

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

This is a relatively minor point, but it goes to the wider question of the overarching clause.

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

We have to look at this issue practically, through the eyes of the people who will operate such authorisations. I know how it will work: they will be directed to look at the necessity against clause 53(7) and they will go through a list. They will then be asked to look at the proportionality against the matters set out in clause 53. That does not point them to privacy. In the vast majority of cases—in good faith, I am sure—they will go through that clause, rather like a checklist. I do not mean to demean or undermine the exercise that they will go through, but I have seen the operation of such tests many times. Those people will ask themselves, “Is it in the interests of X, Y and Z? Is it proportionate to that?” I accept the point about the code of practice, but they will not necessarily ask themselves about privacy. That point is probably more about the overarching clause than about the specific amendment, but that is our nagging concern. One has to see this issue through the eyes of how in practice the process will work on the ground in real time.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

The hon. and learned Gentleman describes the concerns and says that he knows them. Of course, he will also know that it is part of the requirements that those people undertake the right training and that they are expected to have competence, in particular an understanding of all the necessary legislation, including rights legislation. It is important to understand that those people will be making an assessment based on both evidence and comprehension. I re-emphasise that the code of practice is vital. I am trying to tip him off—perhaps I am being too subtle—that he may want to press me further on those very matters in terms of the draft code of practice, which is pretty good, but such drafts can always be improved.

Let me be even more generous. I am an Hegelian, as he knows, and I believe that the truth lies in the whole, as Hegel said. The emphasis on privacy that underpins the whole Bill is fundamentally important, but in this regard I take his point that those missioned to do this job need to be very clear about that balance. To be still more generous, he is right in his strong implication that the training and guidance that those people receive about the interpretation of proportionality in this regard is important. That is the purpose of the code of practice, but we might want to go still further and I am happy to be tested further on that during the course of our consideration. I want to move on to the next group of amendments, because otherwise we will do this to death, but have I signalled clearly my direction of travel?

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

I am grateful to the Minister. I raised this issue of how we go through this exercise with the codes of practice, to which we cannot table amendments, a week ago today. I take his comments as an invitation to draft or suggest tightening amendments—not necessarily in Committee, but outside it—where we think they are appropriate. I take it that those will be taken into consideration in any possible re-drafting of the code. I am grateful for that and we will engage with that exercise.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

Yes. I think we have settled that, then. I was trying to act as an old hand to a young blood, despite our appearances and demeanour. To that end, I think the hon. and learned Gentleman has got the point.

Photo of Simon Hoare Simon Hoare Conservative, North Dorset

To my simple mind, I just wondered which was which.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

I would like to think I was a young blood with an old head. That is how I would see it; let us leave it there and move on.

Let me turn to systems integrity. It is important to set out the process for obtaining communications data. A public authority must require a communications provider to disclose communication data or it may engage in activity to acquire the data directly from a telecommunications system. Where data are sought from a provider, they will mostly be data that the provider has for business purposes or data retained under a retention notice. To the extent that a provider has put in place any dedicated system to provide for the acquisition of communications data, that capability and the necessary security assurances will be provided for under a data retention notice or technical capability notice.

In relation to obtaining data directly from a telecommunications system, the communications data code of practice makes it clear that communications data authorisation cannot permit the undertaking of any technique that involves interference with those systems themselves. That is quite important because, as various Committee members will know, that is an important assurance for providers. Such techniques could be authorised only under an equipment interference warrant. We will discuss those matters in the next part of the Bill.

The processes of requiring a provider to disclose data or the obtaining of data directly from a network will not have any impact on the integrity of telecommunications systems or the computer networks concerned. Accordingly, this is not an area on which the applicant or designated person will require advice. In essence, with that absolute firm assurance, the amendment is unnecessary and I invite the hon. and learned Member for Holborn and St Pancras to withdraw it.

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

The more I have listened to the debate on the amendment, the more convinced I have become that there is a need for an overarching privacy clause, to which I will turn our attention at a later stage. It follows from that that I will focus my energies elsewhere, and therefore I beg to ask leave to withdraw the amendment.

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

I hear what the Opposition spokesman says in this regard, and I have much sympathy with it. However, I wish to press the amendment, for the simple reason that if privacy and integrity are as important as the Minister acknowledges, why not have them in the Bill? That would cause no possible detriment; it can only do good. Therefore, I wish to press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided:

Ayes 6, Noes 9.

Division number 20 Christmas Tree Industry — Use of a single point of contact

Aye: 6 MPs

No: 9 MPs

Aye: A-Z by last name

No: 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 21 Christmas Tree Industry — Use of a single point of contact

Aye: 9 MPs

No: 2 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly agreed to.

Clause 67 ordered to stand part of the Bill.

Clause 68