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House of Lords Hansard
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Investigatory Powers Bill
11 July 2016
Volume 774

Committee (1st Day) (Continued)

Amendment 25A

Moved by

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25A: After Clause 14, insert the following new Clause—

“General public reporting

(1) A person subject to a warrant or notice under Part 2, 3, 4, 5, 6, or 7 of this Act may publish and make publicly available a report including—(a) the number of warrants or notices to which they have been subject;(b) the number of accounts affected; and(c) the number of warrants or notices they have complied with.(2) A person may make the disclosure under subsection (1) in relation to any warrants or notices received in the previous 180 days.”

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The amendments in this group relate to issues which have been raised by service providers, and are all largely probing amendments to ascertain the Government’s response for the record. As has already been said, Clause 2 addresses “General duties in relation to privacy” for a public authority—including the relevant judicial authority—in connection with the issuing of warrants and notices, and sets out the considerations to which the public authority must have regard.

Amendment 25A, the first in the group, provides for a new clause after Clause 2, which would allow companies served with a warrant or notice, whether complied with or not, to publish figures in aggregate for warrants and notices received in the previous 180 days. The point of the amendment is to pursue the issue of transparency where there has been engagement between companies and law enforcement and government agencies under the provisions of the Bill. Such transparency would also appear to be a prerequisite for redress, should the way in which the powers in the Bill are being used be called into question.

In America, the USA Freedom Act significantly reforms the transparency of US surveillance laws, and this amendment is based on part of the provisions of that Act. There seems no reason why there should not be the facility for the level of transparency called for in this amendment, which would enable providers to publish statistical data about the number of warrants received and those given effect to. Not only does this amendment give the Government the opportunity to respond to the specific terms of the amendment but it will enable the Government to say what their intentions are for providing a clear framework for transparency under the Bill in the light of the USA Freedom Act.

The Minister made reference in an earlier debate to the letter that had been sent to my noble friend Lord Rooker in relation to the privacy clause. Towards the end of that letter, dealing with the last of the 10 tests to which reference was made in an earlier amendment, the letter said:

“The Bill also provides for the Secretary of State to designate international agreements under which cross-border requests for information can be made. This will ensure in the future that our protections and safeguards for requests for data under the legislation are capable of being harmonised with like-minded open and democratic Governments”.

The letter went on:

“As the Home Secretary made clear during the Bill’s passage in the House of Commons, we are seeking to negotiate a bilateral agreement with the US to this end”.

It would be quite helpful if the Minister was able to say in response what is the likelihood of the bilateral agreement with the United States of America being achieved, and within what kind of timespan.

I shall move on to the other amendments in the group. Amendments 63, 64 and 65 relate to Clauses 39 and 41. Clause 39, on “Implementation of warrants”, provides that the person who has obtained the warrant—that is, the head of the intercepting agency—may require other persons to assist in giving effect to a targeted interception warrant or mutual assistance warrant. Clause 39(4) provides:

“A copy of a warrant may be served under subsection (3) on a person outside the United Kingdom for the purpose of requiring the person to provide such assistance in the form of conduct outside the United Kingdom.”

Amendment 63 amends Clause 39 to exclude the extraterritorial provision in cases where any mutual assistance arrangement exists between the United Kingdom and the provider’s jurisdiction. It also serves to establish international mutual assistance agreements, of the kind recommended by Sir Nigel Sheinwald, the fast-departing Prime Minister’s special envoy on intelligence and law enforcement data sharing. It seeks to establish international mutual assistance agreements of the kind that he recommended—as currently under negotiation with the US Government—as the primary route by which UK agencies obtain data from overseas communication service providers. The amendment would continue to enable the imposition of warrants on communication service providers in non-mutual legal assistance countries.

Clause 41, on the “Duty of operators to assist with implementation”, provides that a telecommunications or postal service provider served with a target interception warrant or mutual assistance warrant is required to take steps to give effect to it. This obligation applies whether or not the operator is in the United Kingdom. Subsection (4) ensures that the steps a service provider is required to make must be “reasonably practicable”, and subsection (5) provides that, in considering what is reasonable,

“any requirements or restrictions under the laws of the country”,

in which an operator is based must be taken into account.

Amendments 64 and 65 would amend Clause 41 by seeking to establish a reasonableness test for overseas communication service providers. They would also establish international mutual assistance agreements, where they exist, as the primary route to obtain data from these communication service providers. The amendments would also give effect to the Government’s commitment that enforcement powers should not be applicable where an overseas communication service provider is acting under the auspices of an international agreement. The amendments to Clause 41 state that a relevant operator is not required to take any steps which it is not reasonably practicable for the relevant operator to take which, for a relevant operator outside the United Kingdom shall include,

“any steps which would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it has its principal office for the provision of telecommunication services”.

There is a fairly widely held view that the current international legal framework by which UK agencies obtain data from overseas providers needs updating. Sir Nigel Sheinwald recommended that the UK Government engage like-minded Governments to conclude new mutual assistance agreements, which address conflicts of law and provide a sustainable and workable approach for UK agencies to obtain content data from overseas providers. It appears some progress is being made with the US Government towards such an agreement. The Bill currently provides UK agencies with several options to seek data from overseas providers, including mutual legal assistance treaties, the mutual legal assistance convention, international agreements of the kind recommended by Sir Nigel Sheinwald, and service of a UK warrant extraterritorially.

The unilateral assertion of UK jurisdiction overseas risks creating a conflicting world of laws and a difficult and uncertain environment for local staff of overseas companies in the UK and UK companies abroad. The Bill does not direct agencies as to which power to use under what circumstances, and that is an issue that these amendments seek to address. The new international assistance agreements are additional and complementary to mutual legal assistance treaties but, unlike such treaties, international assistance agreements would permit UK agencies to request data directly from overseas providers, in their home jurisdiction, without application to a local court. These amendments do not seek to push all requests through the existing mutual assistance treaties process.

Amendment 65 also relates to Clause 41, on the “Duty of operators to assist with implementation”. The purpose of this amendment is to provide added protections against locally based staff being at risk of sanction for decisions that they do not make. International companies do not always store data in the same countries where they have employees. However, employees in countries other than those where data are stored may need access to data in the course of their employment. As such, these individuals may be technically capable of complying with a request for data. One concern for major companies is that local staff are increasingly vulnerable to being held liable to decisions made by their parent company. That can also be used as a very direct way in which to apply pressure to comply with requests even when there may be a conflict of law.

The effect of Amendment 65A is to make it clear that there is a statutory defence of non-compliance with a warrant when the individual concerned is not authorised to provide data by the company legally controlling it. The amendment seeks to provide legal clarity and ensure that the Bill does not set a precedent for local staff to be held accountable in other jurisdictions.

Amendments 82 and 83 in this group relate to Clause 54, on the “Duty not to make unauthorised disclosures”. Subsection (1) of the clause provides that:

“A person to whom this section applies must not make an unauthorised disclosure to another person”.

Amendment 82 would add in the words, “without reasonable excuse”. Amendment 83 would insert a new subsection, stating that,

“it is, in particular, a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued”.

The amendments would add the reasonable excuse defence to the unauthorised disclosure offence and expressly provide that the defence applies whether permission is given by the person issuing the warrant or the person to whom it is issued.

Other amendments in this group, Amendments 174 and 175, would extend the reasonable excuse defence to the unauthorised disclosure obligation in relation, for example, to equipment interference warrants. On the face of it, there appears to be no reason why there should not be a reasonable excuse defence, particularly covering the specific instances referred to in the amendments in this group, and I await the Government’s response.

Clause 55 sets out the meaning of “excepted disclosure”, as referred to in Clause 54(2)(b). The clause deals with the duty not to make unauthorised disclosures and an excepted disclosure cannot be an unauthorised disclosure. Clause 55(7) sets out excepted disclosures under the heading in the Bill,

“disclosures of a general nature”.

Amendments 84A and 84B expand the protection offered as an excepted disclosure by removing what could be regarded as the narrowing provision of Clause 55(7)(a) and extending the remaining provision to include warrants as also described in Clause 54(2)(a)(i) and Clause 54(2)(a)(ii). It is not clear why a distinction is drawn between the wording in Clause 54 and Clause 55 in that regard.

Finally, Clause 228 provides further details about national security notices and technical capability notices. The power to issue a technical capability notice has extraterritorial effect under Clause 226(8) and can be enforced against an overseas provider under Clause 228(10). There are a half a dozen or so powers which have extraterritorial effect. Of these, three are enforceable against overseas providers: targeted interception, targeted acquisition of communications data and bulk interception. The Secretary of State is required in all three cases to take into account requirements of the domestic law of the overseas provider and the extent to which it is reasonably practicable for a provider to comply with a notice. Amendments 104 and 105 would require the Secretary of State to apply the same consideration to applications for a technical capability notice and replicate the wording already used in Clause 41(5), which covers the duty of operators to assist with the implementation of warrants. These amendments would also appear to be relevant to Sir Nigel Sheinwald’s recommendation that the Government should engage with the Government concerned where there is a conflict of law rather than risk overseas providers facing an irreconcilable situation.

I think that has addressed all the amendments that I have down in this group. I will listen with interest to the Government’s response. From that response I hope to form a view about whether the amendments I have put down have real weight and merit or whether the Government can provide a satisfactory answer to the concerns behind them. I beg to move.

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I shall speak briefly to the amendments set out by the noble Lord, Lord Rosser, about co-operation with companies based oversees. A real concern to multinational companies is a conflict of law between the country in which they are based and the UK. That concern has been expressed to us as well. As we go through the Bill, we will see that co-operation between countries is increasingly important. As communication moves from cellular communication to communication using the internet, many of the companies that people use to communicate with each other—Facebook, WhatsApp and other platforms of that sort—are based in the United States. The more warrant authorisation processes are harmonised, the more there can be international agreements between countries and the more success we will have in securing communications data and intercept evidence as a result of people moving from cellular to the online environment. I generally support what the noble Lord, Lord Rosser, said about the importance of resolving these issues and forging as many agreements as possible with countries, particularly those where these widely used communications platforms are based.

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My Lords, I shall begin by addressing the amendments which relate to the serving of warrants and the giving of notices to overseas telecommunications operators. The first, Amendment 63, appears to remove the ability to serve a warrant outside the United Kingdom when the United Kingdom has entered into an international agreement with the country where that person or company is established. Perhaps that was not the intention. It seems counterintuitive to prohibit the service of a warrant on a person outside the United Kingdom when they are based in a territory with which the United Kingdom has an agreement which expressly provides for the service of warrants overseas. I wonder whether it was intended to do the opposite and provide that a warrant might be served on a person outside the UK only pursuant to a relevant international agreement.

In any event, it is important to remember that, although discussions are ongoing, there is currently no international agreement between the United Kingdom and the United States. As the Home Secretary has previously stated, the UK and United States Governments have begun considering a framework under which US-based communications service providers could disclose data directly to the United Kingdom for serious criminal and counterterrorism investigations in response to a UK order requesting the content of the communications—that is, a warrant. We are eager to press forward with developing an agreement. In response to the observations of the noble Lord, Lord Rosser, I can say that timetabling will depend on changes to the relevant US domestic legislation, a matter to which the United States Attorney-General recently referred. But it is not possible to give a more exact timetable so far as that is concerned.

Taking up the point of the noble Lord, Lord Paddick, of course it would be beneficial to all concerned that we should achieve some form of international agreement with regard to these matters, and it is hoped that the agreement with the United States might provide a template to take this forward. But let us accept that we are at a very early stage.

It is important to be clear that any company complying with warrants under an international agreement will not face enforcement action. I am perfectly content to put that important point on record for the noble Lord, Lord Rosser, who opened by explaining that these were essentially probing amendments, and I appreciate that. However, it is also important to explain that such agreements will not by themselves require a company to comply with a United Kingdom warrant. Even when an international agreement is in place, it remains vital that the Bill continues to exert extraterritoriality in relation to interception warrants. This also provides the legal certainty that some companies have been asking for.

Amendments 64 and 65, made to Clause 41, would set out that it would not be reasonably practicable for an operator outside the United Kingdom to comply with a warrant if that involved acting contrary to any laws or restrictions in the jurisdiction in which its principal office is located. These amendments are unnecessary because subsection (5) already makes it clear that, in determining whether it is reasonably practicable for a company to comply with a warrant, any requirements or restrictions under the law of the territory in which it is based must be taken into account. I do not want to quote the matter at length, but I will just refer to the relevant provision. In Clause 41(5), the matters to be taken into account include,

“any requirements or restrictions under the law of that country or territory that are relevant to the taking of those steps, and … the extent to which it is reasonably practicable to give effect to the warrant in a way that does not breach any of those requirements or restrictions”.

Therefore, it appears that this issue is already addressed. Indeed, what is said in the Bill replicates the existing position under the Regulation of Investigatory Powers Act 2000, as amended by the Data Retention and Investigatory Powers Act 2014.

I believe that the intention of Amendment 65A is to provide additional protections for staff employed in the United Kingdom by telecommunications companies whose principal offices are established overseas. Again, this additional language is unnecessary, and I will seek to explain why. In respect of interception warrants, the Government have already amended the Bill in response to concerns from overseas companies to make it clear that a warrant must be served in such a way as to bring the contents of the warrant to the attention of a person who is capable of providing assistance in relation to it. Clearly, an employee based in the United Kingdom who has no access to relevant information would not be such a person, as they would not be capable of providing the assistance required. The concern that enforcement action will be taken against junior local employees is also misplaced, since it is the telecommunications operator, rather than any individual, who is subject to the duty to provide assistance. I also make the point that it would not be in the interests of the relevant agency to serve a warrant or a notice in such a way that meant it could not be complied with quickly and efficiently. But the broader point is that if there is a conflict between United Kingdom law and the internal authorisation processes of an individual company, then of course United Kingdom law must always take primacy.

Amendments 104 and 105 would permit a person not to comply with a technical capability notice if the notice would require the person to act in a way contrary to any law or restriction in their country or territory. This amendment reads across provisions from other parts of the Bill—those relating to interception warrants and targeted communications data requests, as the noble Lord, Lord Rosser, noticed—but it does so inappropriately.

Any conflict of law issues will arise in taking steps to give effect to a warrant. It is appropriate that the provisions for taking into account such conflicts are included in the Bill in relation to the provisions which allow a warrant to be enforced against a person outside the United Kingdom. I stress that it is a warrant, not the technical capability notice. The Bill provides that laws in the jurisdiction in which a company is based must be taken into account when deciding whether to impose an obligation by serving a warrant.

Giving a technical capability notice to an operator simply requires it to maintain a technical capability. Technical capability notices can be used only to impose requirements to provide assistance in relation to warrants or authorisations provided for elsewhere in the Bill. Conflict of law issues are very unlikely to arise in that context because developing and maintaining the capability does not of itself authorise the acquisition of data.

In addition, Clause 226 requires that before giving a technical capability notice to a person, that person must be consulted. In the unlikely event that a conflict of law issue arose in the giving of a notice, this would be revealed during the consultation. The Secretary of State is expressly required by Clause 228 to take into account the technical feasibility, likely cost and any other effect on the person of complying with the notice. Clause 226(4) makes clear that a notice can be served only if it is reasonable to impose an obligation and practicable for the relevant operator to comply. It would of course not be reasonable to impose an obligation that could not lawfully be complied with.

I will address the proposed amendments to Clauses 54 and 123 with respect to reasonable excuse. These amendments would amend the duty not to make an unauthorised disclosure so that it would be permitted if there was a “reasonable excuse”. I hope I can reassure noble Lords that the concerns this amendment seeks to address are already met by the Bill. To begin, I should explain why the Government have a policy of not revealing the existence of a warrant.

If they are to remain effective, the techniques and capabilities available to the agencies must be protected. A disclosure of such details would cause damage to the ability of the authorities to keep us safe. Clauses 54 and 123 set out those people who are required not to make unauthorised disclosures under this Bill. Clauses 55 and 124 provide the limited circumstances where disclosure is already permitted. It cannot be right for the Bill to allow a person to release sensitive information into the public domain and then subsequently argue that they had a “reasonable excuse”. Once the information is released into the public domain—be it with good or bad intentions in mind—it cannot be withdrawn and the consequences cannot be undone.

Of course, it is absolutely right that cases of wrongdoing or impropriety are made public and that justice is done in such instances. That is why we have provided in the Bill for an Investigatory Powers Commissioner, with the power to look into any aspect of the use of these powers and to take such action as he or she sees fit. It is much better that a senior, impartial judge should take a view on what is in the public interest than, say, a junior official or an employee of a telecommunications operator.

Nevertheless, we acknowledge that it is important that such people can raise concerns without fear of prosecution, which is why Clause 212—which we will get to when we consider Part 8—also provides for an information gateway so that whistleblowers can take their concerns directly to the commissioner without fear of sanction under the Bill. Combined, these clauses help to maintain an important principle that helps the agencies to protect their techniques and, in turn, to protect us.

Amendment 25A would insert the proposed new clause on public reporting. These amendments would provide for a person who is subject to a warrant or notice to report certain details of the warrants and notices to which they have given effect. Clause 55 already provides for the Secretary of State to make regulations, setting out the information that a postal operator or a telecommunications operator may disclose in relation to the number of interception and equipment interference warrants to which an operator has given effect. The regulations will set out the bands and timeframes within which an operator may publish information about warrants. It is my view that the level of detail required is appropriate for such conditions to be provided for in regulations and not on the face of the Bill.

This amendment would also undermine the prohibition on operators disclosing the existence and contents of bulk communications data acquisition warrants and data retention notices; I cannot support this proposal. These authorities are kept secret because revealing their existence could damage national security and hamper the prevention and detection of crime. Criminals may change how they communicate in order to use a provider that is not subject to a publicly avowed government requirement. That is why we need to be very careful about any exemptions to prohibitions on revealing such sensitive information.

I recognise that there is a careful balance to be struck between protecting sensitive information and the need for transparency regarding the use of investigatory powers, but I consider that this balance is achieved by the provisions set out in this Bill, including those relating to public reporting at Clause 55. The Government will continue to work closely and constructively with the telecommunications operators on this matter, including by consulting them on the content of the draft regulations, in order that we may provide for an approach that works for all concerned. For the reasons I have set out, I invite the noble Lord to withdraw the amendment.

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I thank the Minister for that comprehensive reply. I will read it carefully in Hansard and reflect on what he had to say. I beg leave to withdraw the amendment.

Amendment 25A withdrawn.

Clauses 15 and 16 agreed.

Clause 17: Subject-matter of warrants

Amendment 26

Moved by

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26: Clause 17, page 13, line 31, leave out “or organisation”

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My Lords, my noble friend Lady Hamwee and I have Amendments 26 to 31 in this group. Under Amendment 31, we have concerns about the breadth of warrants. These warrants are described as targeted interception warrants or targeted examination warrants. Noble Lords will no doubt recall that targeted examination warrants relate to where a bulk interception has resulted in coming across content that belongs to a UK citizen and, therefore a targeted examination warrant is required in those circumstances. Clause 17(1)(a) provides that a targeted interception warrant or a targeted examination warrant may relate to,

“a particular person or organisation”.

An organisation could cover hundreds, if not thousands, of people. I am indebted to my noble friend Lady Hamwee, who tells me that it could, in fact, relate to the National Trust—I am not sure about horticultural terrorism, but they have more than 1 million members. We are probing whether it is appropriate to have a targeted interception warrant that is targeted at an organisation, particularly when in Clause 17(1)(b), it says that such warrants can only apply to,

“a single set of premises”.

The potential contrast between the number of people who might be affected in terms of an organisation being targeted by a targeted interception warrant but only a single set of premises seems stark.

Similarly, Clause 17(2)(b) says that such a warrant may relate to,

“more than one person or organisation”,

so again it is very broad. The number of people––potentially innocent people––caught up in such a targeted interception could be extremely large.

Amendment 27 relates to Clause 17(2)(a), whereby,

“a group of persons who share a common purpose or who carry on, or may carry on, a particular activity”,

can be targeted by an interception warrant. To narrow the potential for this to affect a large number of individuals, the amendment would require each person to be named or identified using a unique identifier. While we accept that with, for example, members of a gang involved in drug dealing, one may not know the names of the individuals concerned, one might from surveillance footage be able to accurately describe the individual whom one wants to target by means of that warrant. A similar argument is suggested by Amendment 29 in relation to Clause 17(2)(b).

Amendment 30 relates to Clause 17(2)(c) and queries the issuing of warrants for “testing or training activities”. While Clause 17(3) defines what such activities are, it does not seem clear to us why it would be necessary to issue a targeted interception warrant to test equipment or train individuals in its use. One would have thought that, if it was a training or testing exercise, it could be done with the consent of whoever is being targeted by the training or testing activities. Amendment 31 therefore suggests that Clause 17(3), in relation to “testing or training activities” be deleted. I beg to move.

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My Lords, some of these amendments were discussed in the other place. They would remove the ability of the warrant-requesting agencies to apply for a warrant against an organisation; they would require a warrant to name or identify each individual involved in an operation, and they would remove warrants for testing and training activity.

As was set out in the other place, it is important that those responsible for keeping us safe have the powers they need. We consider that the amendments would undermine those necessary powers, but I appreciate that the noble Lord is advancing essentially probing amendments and I respond in that spirit.

Let me start with the amendment regarding unique identifiers. As was explained in the other place, it is not always possible at the outset of an investigation to know or have identified all the individuals who may be subject to a warrant during that investigation. When a warrant is granted against a kidnap gang, for example, the Secretary of State may not know that there are four members of the gang rather than three. The ability to grant a warrant against the gang to establish its size and to identify co-conspirators is precisely why RIPA provided for so-called “thematic” targeted warrants. They are an invaluable tool in allowing the agencies to investigate complex or fast-moving threats, and it is important that we do not undermine their ability to use that tool.

I reassure the noble Lord, Lord Paddick, that the Bill already provides at Clause 29(8) that the warrant has to specify, for example, the phone numbers to be intercepted. Furthermore, Clause 29(4) provides a safeguard for warrants that relate to a group of persons who share a common purpose or who carry on a particular activity—for example a paedophile network—by requiring that the warrant must name or describe as many of those persons so far as is reasonably practicable. I am afraid that I do not accept the analogy with the National Trust—I do not consider it apposite at all.

It is already the case that the warrant will name or describe particular people whose communications are to be intercepted as they become known over the course of the investigation. This is an important safeguard that will assist the oversight of thematic targeted warrants. It is therefore in these circumstances that I suggest that the amendment is not necessary.

Perhaps I may move on to the amendments that seek to remove the ability to grant a warrant against an organisation. Such a change would be operationally damaging and is, moreover, unnecessary. The Bill and the statutory code of practice impose strict limits on the issue of warrants, including in relation to organisations. Such warrants are not open-ended. Their scope must be sufficiently limited that the Secretary of State can properly assess the necessity and proportionality of the interference. Further, under the Bill a judicial commissioner will need to approve the Secretary of State’s decision. In those circumstances the Bill will not allow for overly broad warrants to be issued.

I turn finally to testing and training warrants. The amendments would remove the ability to apply for a warrant for testing or training purposes. Again, I suggest that that would be damaging operationally and would result in a consequent reduction in safeguards. It is vital that those who are authorised to undertake interception are able to test new equipment and to make sure that those responsible for using that equipment are properly trained in its use. Of course there is an element of systems here in the context of the equipment. While it is possible for some testing of equipment to take place in a controlled environment, it is sometimes necessary to test equipment outside of controlled environments to ensure that it will work in real-life situations. There are therefore strict controls which govern the handling of material obtained in this way during such tests. However, we believe that it is right that it should be possible to test this equipment in scenarios where it can be checked that it is working effectively and to help ensure that the users are operating it correctly. Without the ability to test equipment, we will increase the risk of mistakes being made where individuals are not able to receive adequate training in the use of equipment.

The warrant application process in these circumstances allows the Secretary of State to understand the potential risk that communications will be intercepted incidentally to the purpose of the testing or training, and to agree the measures to be taken to reduce the chances of communications being accidently intercepted. There are clear safeguards in place to protect the privacy of citizens. Accordingly, I invite the noble Lord to withdraw his amendment.

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My Lords, I should mention that this subject was covered extensively in the Joint Committee on the Bill. It seems that the noble and learned Lord is suggesting that in order to be able to monitor a gang when we do not know if it is made up of three or four people, the language of the clause should be this open. Perhaps I may quote from some of the evidence that was given to the committee. The clause fails to,

“exclude the possibility that everyone who belongs to a certain trade union, political party or book club; visits a certain shop; attends (or has friends or family members who attend) a certain house of worship; subscribes to a certain publication; participates in a lawful and peaceful demonstration; celebrates or may celebrate a certain religious or national holiday”,

and so on and so forth. All those activities seem, perhaps as an unintended consequence, to be swept up by this provision. Recommendation 38 made by the committee states that,

“the language of the Bill be amended so that targeted interception and targeted equipment interference warrants cannot be used as a way to issue thematic warrants concerning a very large number of people”.

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A thematic targeted warrant will be granted only in circumstances where the Secretary of State is satisfied that it is necessary and proportionate. None of the examples cited by the noble Lord comes within a hundred miles of that.

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I am grateful to the noble and learned Lord for his explanation and I am reassured to some extent by, for example, some of the provisions he highlighted in Clause 29(8) and (4). I understand that in fast-moving situations such as a kidnapping it may be necessary to add people to the warrant or to encompass additional individuals who are not specifically named on the warrant. However, I wonder whether some safeguards can still be provided in slower-moving situations, or whether, as in the case where there are provisions for the urgent issuing of warrants, those provisions could be used in these cases.

As for the strict limits on the targeting of organisations, I accept, as I notice the Labour Front Bench also accepts, that these warrants must be necessary and proportionate, and that they provide some safeguards against overreaching in the use of these warrants. I am still puzzled about training and testing warrants. I accept that new equipment and individuals need to be trained in real, live situations, but I am a little concerned about who the individuals and organisations are that might be targeted in these training exercises, bearing in mind that the whole suggestion is that the normal provisions of proportionality and necessity, in terms of suspicions that these individuals are up to no good, would not apply in these situations. Therefore, what is learned? What privacy is being intruded into in the course of these training and testing activities?

My concerns remain about some of those areas, but I am reassured by other things that the noble and learned Lord has said and I beg leave to withdraw the amendment.

Amendment 26 withdrawn.

Amendments 27 to 31 not moved.

Clauses 17 and 18 agreed.

Clause 19: Power of Secretary of State to issue warrants

Amendment 32

Moved by

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32: Clause 19, page 14, line 30, leave out “The Secretary of State” and insert “A Judicial Commissioner”

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My Lords, my noble friend Lady Hamwee and I have Amendments 32 to 36 in this group. These amendments seek to probe the Government’s position and how far they might be prepared to go in adopting, for example, the recommendations that David Anderson made in his report about removing the Secretary of State from the issuing of targeted interception and examination warrants and replacing the Secretary of State, as the person who decides on these warrants, with a judicial commissioner. The volume of warrants that the Home Secretary, for example, has to sign amounts to as many as 10 a day. We are relieved that she does not now have the additional burden of having to run for leader of the Conservative Party, but one can imagine that to give proper consideration to 10 warrants a day is a significant undertaking, in addition to her other responsibilities.

In non-contentious cases, where there is no political aspect, such as law enforcement warrants, where one is dealing with serious crime—with drug dealers, for example—it is difficult to understand why one would need the Secretary of State to consider these issues. We obviously accept that there may be cases where there is political sensitivity, even in the case of serious crime, and it may be that the Bill can be amended to allow either for the judicial commissioner or even the applicant for the warrant to refer the matter to the Secretary of State in those cases. I also accept that in cases of national security—in cases where the security services, for example, are seeking a warrant, particularly where they may be looking at interception of foreign communications, even foreign diplomatic communications—there is a definite need for the Secretary of State’s involvement. However, as I say, the thrust of this group of amendments is to explore why the Government insist on the Secretary of State being involved in 75% of the warrants that, for example, the Home Secretary signs when those warrants appear to be non-contentious and not politically sensitive but simply to do with law enforcement and serious crime. I beg to move.

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I support what the noble Lord, Lord Paddick, has said, and I too would be grateful for an explanation of why it is necessary or appropriate for the Secretary of State to be involved in the issuing of warrants in relation to non-contentious matters. My understanding—and I should be grateful if the Minister can deal with this—is that the Bill will impose those responsibilities on the Secretary of State in relation to basic policing functions, even though, under existing law, the Secretary of State has no role in the issuing of warrants in such circumstances.

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My Lords, I spent a lot of time sitting on the Joint Committee, and since then, searching in vain for a cogent reason why the Secretary of State needs to sign off warrants that have no national security or diplomatic import. Why should the Minister spend her valuable time examining and authorising warrants about everyday criminals? We are told that two-thirds or three-quarters—I do not know which; I have heard both figures—of warrants have nothing to do with national security or diplomacy.

The Secretary of State has no role in authorising property search warrants, which arguably are more intrusive, and involve invasion of a person’s home and discovery of information about a far wider range of subjects than a person’s communications. The only reason ever offered is that the Secretary of State is subject to scrutiny by Parliament, whereas a judicial commissioner is not.

When they gave evidence to the Joint Committee I asked two former Ministers who were responsible for authorising warrants how many times they had been held to account by Parliament. Both the noble Lord, Lord Blunkett, former Home Secretary, and Owen Paterson, former Northern Ireland Secretary, said that it had never happened. That was just as well because it is a criminal offence under RIPA for the existence or details of a warrant to be publicly disclosed. Clause 54 of the Bill continues that ban, with a penalty of up to five years in prison. Therefore, the whole notion of parliamentary accountability for Ministers who authorise warrants is a complete myth. It has never happened and the Bill prohibits it.

I expect that the Government will refer to the potential to be held to account by the ISC, but that does not fit the Bill and is not visible to the public. As far as I know—and as far as the noble Lord, Lord Blunkett, knew when he gave evidence—there are no examples of the ISC holding Ministers to account. I should be interested if the Minister can give some examples of when that has happened. I, too, wait with interest to hear the Government’s response to the amendment.

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My Lords, the Secretary of State’s involvement in law enforcement warrants is a historical hangover from when this was the only kind of control or restraint on police applications that existed prior to this legislation. Perhaps it shows a lack of rethinking the nature of judicial authorisation, such as this Bill provides for, that her involvement—it may well be “him” in the future—should have survived when it does not seem either to have practical purpose or to add significantly to the protections that the legislation will afford against misuse or excessive use of the power.

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My Lords, as the noble Lord, Lord Paddick, explained, these amendments seek to place the sole decision on whether to authorise a warrant application with a judicial commissioner. In the Government’s firm view, this would be a mistake. The noble Lord asked why there is a need for the Secretary of State’s involvement at all. Having a judicial commissioner be solely responsible for authorising warrants would remove all democratic accountability for that decision and would effectively remove parliamentary scrutiny from the process. In the scenario that a warrant was incorrectly either refused or approved, then the ability of Parliament to hold an individual to account for that particular decision would be greatly diminished.

Additionally, the Home Secretary, Foreign Secretary, Defence Secretary and Northern Ireland Secretary are accountable to Parliament for the actions of the security and intelligence agencies and the law enforcement agencies. If Secretaries of State are not able to authorise, or refuse to authorise, intelligence gathering—one of the primary activities of an agency—I simply ask: how can they properly be held to account for the operation of those agencies?

There is another aspect as well. These amendments would also significantly undermine the ability of the Executive to carry out one of their primary duties, which is to uphold national security. If the Executive have no opportunity to offer an opinion on whether a particular intelligence opportunity should be pursued, then how can they properly fulfil their responsibility to keep the public safe from those who would seek to do us harm?

Though the Joint Committee convened to scrutinise the draft Bill, Parliament has already given detailed consideration to the question of who should authorise warrants. That committee heard evidence from judicial commissioners, former Secretaries of State and others. It concluded that the model of authorisation by the Secretary of State, followed by approval by a senior judge, was the right way to preserve democratic accountability and to introduce a new element of judicial independence. And at Second Reading in the other place, there was very strong cross-party support for a government amendment that preserved the double lock and the role of the judicial commissioner, so this is well-trodden ground, I suggest, and it is clear that there is strong support, including from senior members of the judiciary, for the approach set out in the Bill.

The noble Lord, Lord Strasburger, asked whether a Secretary of State has ever been held accountable for a warrant. Protecting the UK and its people is the first duty of government. Secretaries of State are accountable to Parliament for the actions of the intelligence agencies and law enforcement bodies that they oversee, as I said. The Intelligence and Security Committee of Parliament plays a crucial role in this. Its review of the tragic killing of Lee Rigby is an excellent example of its in-depth investigation of what occurred, and whether it was preventable. That investigation considered the authorisation of sensitive capabilities and, while some of its scrutiny was inevitably held behind closed doors, Ministers were certainly held to account for their decisions. So the approach taken in the Bill offers a balance between the expertise and accountability of a Secretary of State and the independent scrutiny of a judicial commissioner. A judicial commissioner will need to be fully satisfied that the Secretary of State’s decision to authorise a warrant was correct; otherwise, that warrant cannot be issued. This double-lock system is in our view far preferable to a single authorisation system and will give the UK world-class safeguards. I hope that that is a helpful explanation and will encourage the noble Lord to withdraw his amendment.

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I think the Minister will have to concede that the notion of democratic accountability is wafer thin because a Minister cannot come to Parliament to explain or defend what is being asked about—any warrant. I would like the Minister to explain to us why the four other partners in the “Five Eyes” network—that is, Australia, Canada, the US and New Zealand—find no need for this democratic accountability.

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Will the noble Lord be kind enough to repeat the last part of his question?

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The “Five Eyes” partnership of Australia, New Zealand, Canada, America and the UK has been in existence since the Second World War. The UK is the only one out of those five that feels the need for Secretaries of State or politicians in general to be involved in authorising warrants. I was wondering why the UK has to stand out alone in that way.

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It is really quite difficult for me to answer the noble Lord’s question on the “Five Eyes”: it has to be a question for the other members of that group. The approach we have taken is consonant with our general wish, as a country, to hold Ministers to account for important decisions taken about national security and privacy, rather than to consign those decisions to the court. Nevertheless, we believe there is a role for a judicial commissioner to approve what Ministers do. That double lock is the formula which most people in the other place were comfortable with. That is probably all I can say on that score. I hope that the noble Lord will reflect on the case of Lee Rigby, which is a good example of how a Minister was directly accountable to Parliament, albeit in secret session but nevertheless fully accountable to a committee of Parliament. I am sure there are other examples where that has occurred.

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Before the Minister sits down, could I test his patience? Will he write to me on the question that I raised, which is whether or not the Bill will expand the scope of the authorisation powers of the Secretary of State to new areas or whether it simply continues the existing scope of those powers? If the Bill does confer an authorisation power on the Secretary of State in relation to a wider scope, could he please explain why?

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I should be happy to write to the noble Lord on that point.

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I am grateful to the Minister for his explanation. I did say that the amendments were probing ones and suggested that national security and politically sensitive issues—as with the Lee Rigby case, to which he referred—would have to be outside this provision. The fact is that in 2014 the Home Secretary personally authorised 2,345 interception and property warrants and renewals, which is about 10 a day. Even David Anderson was shocked by the number of warrants that the Home Secretary had to personally sign, which was why he came up with his recommendation. As the noble Lord, Lord Pannick, said, our understanding is that the number of warrants which the Secretary of State will have to sign will increase as a consequence of this legislation. David Blunkett, who has written of his time as Home Secretary, said that:

“My whole world was collapsing around me. I was under the most horrendous pressure. I was barely sleeping, and yet I was being asked to sign government warrants in the middle of the night. My physical and emotional health had cracked”.

I am sure that the current Home Secretary is more resilient than the noble Lord, Lord Blunkett, was in those circumstances.

Another issue, which I spoke about in the previous set of amendments, is the importance of international collaboration, particularly with the United States. I reinforce what my noble friend Lord Strasburger said. In America, federal investigative and law enforcement officers are generally required to obtain judicial authorisation for intercepting wire, oral and electronic communications. A court order must be issued by a judge of a US district court, a US court of appeals or a FISA judge. If we are to have these international co-operation agreements, again, as David Anderson pointed out in his report, it is important as far as possible to harmonise between different countries the authorisation levels of the system of authorisation. I will read what the Minister has said in his response and I agree that the amendments as drafted go too far, but this is something that we can hopefully discuss between now and Report. If not, we may have to bring this matter back on Report. At this stage, I beg leave to withdraw my amendment.

Amendment 32 withdrawn.

Amendments 33 to 36 not moved.

Clause 19 agreed.

Clause 20: Grounds on which warrants may be issued by Secretary of State

Amendment 37

Moved by

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37: Clause 20, page 16, line 11, at end insert—

“( ) A warrant may be considered necessary for the reasons given in subsection (2)(b) or (3) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed.”

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My Lords, my noble friend Lady Hamwee and I have Amendments 37, 121, 153 and 161 in this group. Basically, these amendments relate to Clause 20, “Grounds on which warrants may be issued by Secretary of State”. We suggest an additional paragraph, where a warrant is issued for the purposes of preventing or detecting a serious crime, or in the interests of the economic well-being of the UK,

“only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed”.

I refer to the briefing provided by Liberty, which points out that one of the greatest problems, recurrent in every power in the Bill, is the lack of a reasonable suspicion threshold for surveillance warrants to be authorised for the purposes of preventing and detecting crime. It states that:

“Intrusive powers can be authorised in order to ‘prevent and detect serious crime’, or even (in the case of communications data) to collect tax, prevent disorder, or in the interests of public safety. However, these general purposes are left wide open to broad interpretation and abuse without requiring a threshold of suspicion”.

The briefing says that a requirement of reasonable suspicion, when the purpose to prevent and detect serious crime is invoked, would prevent the potential abusive surveillance of law-abiding citizens that has regrettably been seen in the past.

The threshold of reasonable suspicion has long been an important safeguard for citizens and law enforcers against the risk of arbitrary use of police powers. The necessary and proportionate standard invokes an important assessment of the extent of the intrusion, but it does not, as we read it, require a burden of proof. Perhaps the Minister could explain how or why the “reasonable suspicion” test should not be applied to the various powers covered in our amendments. I beg to move.

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My Lords, as the noble Lord, Lord Paddick, explained, these amendments seek to provide that certain authorisations can be given only where there is a reasonable suspicion that a serious criminal offence has been, or is likely to be, committed. It is almost like trying to compare apples and oranges. The construct of the Bill is not around reasonable suspicion. It is around necessity and proportionality. They achieve the same goal, but in different ways. These amendments are not necessary and, in the case of communications data, would undermine the ability of law enforcement and other public authorities to catch criminals and to keep the public safe. First, let me assure the Committee that for a warrant to be issued for the prevention or detection of serious crime, a sufficiently compelling case will always be required; a speculative warrant could never be approved under Clause 20. The same is true for authorisations to obtain communications data for the purpose of preventing or detecting crime. So these amendments respond to a concern that, I suggest, is misplaced.

In relation to the retention of communications data, the effect of these amendments would be even more profound. By requiring that data can be retained—that is, held by a communications service provider—only where it is suspected that a crime has been committed, the amendment proposes to move the UK from a data retention regime to one of data preservation. Data preservation means that data are retained by a communications service provider only once a suspect becomes known to the police. In many cases, that is simply too late to be of use; for example, 58% of requests for communications data in child abuse investigations are for data that are more than six months old. Under a data preservation model, those data may not be available, and criminals would walk free.

It is for that reason that the UK operates a data retention model, rather than a data preservation model, whereby data are retained by companies and accessed by law enforcement only when it is necessary and proportionate to do so—the relevant test under the Bill. The benefits of such a model over data preservation are stark. In a Europe-wide investigation into online child sexual exploitation, of 371 suspects identified in the UK, 121 arrests or convictions were possible; of 377 suspects in Germany, which does not have data retention, no arrests were made.

In view of the very significant impact that would flow from these amendments, I invite the noble Lord to withdraw Amendment 37.

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Can the Minister give the Committee a practical example of where it would be necessary and proportionate—the test that he emphasises—to exercise these powers where there is not, to quote the amendment,

“a reasonable suspicion that a serious criminal offence has been or is likely to be committed”?

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I think the noble Lord helpfully makes my point for me. As I said at the outset, we are dealing with apples and oranges. We achieve the same objective by different routes, but I am obliged.

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I am sorry to prolong this but I am not agreeing with the noble and learned Lord, I am asking for a practical example of why the Government are not prepared to accept a “reasonable suspicion” test.

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For example, in the case of a missing person there may be no reasonable suspicion but it may still be necessary and proportionate to grant a warrant in those circumstances. I hope that that is concrete enough.

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I am very grateful to the Minister. While I accept that there are some cases where the test of reasonable suspicion is not required—he gave the very good example of a missing person—I still wonder why the Government are averse in all circumstances to having a “reasonable suspicion” test. If I understand what he is saying, I accept that it is implicit in the necessity provision of issuing a warrant. At this stage I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Clause 20 agreed.

Clause 21: Power of Scottish Ministers to issue warrants

Amendment 38

Moved by

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38: Clause 21, page 17, line 31, at end insert—

“( ) The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary on grounds falling within subsection (4).”

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My Lords, in moving Amendment 38, I will speak also to Amendments 117, 118, 120, 155, 157, 162, 163, 165, 166, 203, 220 and 223. I recognise that the Opposition and the Scottish National Party raised concerns about trade union protections in the Public Bill Committee in the other place. I know that it has been suggested that investigatory powers may have been used in the past to interfere with legitimate trade union activity.

Allow me to repeat what was said in the Commons. The agencies have never been interested in investigating legitimate trade union activity. The Security Service Act 1989 and the Intelligence Services Act 1994 limit the activities of the agencies. Both Acts make it explicit that the agencies cannot act to further the interests of any political party. It goes without saying that all the agencies take these duties very seriously.

The Government therefore agreed an opposition amendment on Report in the Commons to what is now Clause 20 of the Bill, making explicit that legitimate trade union activity would never be sufficient grounds of itself for an interception warrant application to be considered necessary.

These amendments read across protections from that amendment to all the relevant provisions in the Bill. It would still permit public authorities to apply for a warrant or authorisation, or issue new or varied data retention notices under Part 4, relating to members or officials of a trade union considered to be a legitimate intelligence target, but it makes explicit that legitimate trade union activity would never be sufficient grounds, of itself, for a warrant, authorisation or notice to be considered necessary. Accordingly, I beg to move.

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The noble Earl recognises in his amendment that legitimate trade union activities would not of themselves be sufficient to establish the necessity of a warrant. I wonder whether the Government’s position is that they also recognise that legitimate trade union activities could not be relevant to the issue of a warrant, because the amendment does not go that far. If the Government do not recognise that, can they give a practical example of where legitimate trade union activities—I emphasise legitimate—could even be relevant to the issue of a warrant?

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I cannot do so and I am not sure that it is necessary for me to do so, because if, as I have explained, legitimate trade union activity is never sufficient grounds of itself for a warrant, the question of relevance does not arise.

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Unless the noble Lord, Lord Pannick, has driven a coach and horses through these amendments—I shall have to consider carefully what he said—I would like to thank the Government for bringing them forward. As has been said, they incorporate in all the relevant parts of the Bill the change that was made in relation to trade union activity in providing protection for it when the matter was debated in the Commons. We welcome the amendments and the Government honouring the commitment that they gave in the other place.

Amendment 38 agreed.

Clause 21, as amended, agreed.

Clause 22 agreed.

House resumed.

House adjourned at 9.53 pm.