Legislative Scrutiny: Investigatory Powers Bill Contents

9Conclusions and recommendations

Introduction

1.In view of the extensive pre-legislative scrutiny that the draft Bill received, and the importance of ensuring that a Report from this Committee is available to inform debate about the human rights implications of the Bill before it leaves the House of Commons, we decided to prioritise our scrutiny on what we consider to be the most significant human rights issues raised by the Bill which we anticipate may be debated at Report stage in the Commons. Further amendments may be proposed for later stages. (Paragraph 1.7)

2.We draw parliamentarians’ attention to the Independent Reviewer’s account of the legal framework as the starting point for their consideration of the human rights compatibility of the Bill. (Paragraph 1.19)

3.We welcome the introduction of a Bill as representing a significant step forward in human rights terms towards the objective of providing a clear and transparent legal basis for the investigatory powers being exercised by the security and intelligence agencies and law enforcement authorities and, in many respects, enhanced safeguards. In this Report we focus on areas in which in our view the opportunity could be taken to amend the Bill to improve further the compatibility of the legal framework with the requirements of human rights law. (Paragraph 1.21)

Bulk powers

4.In our view, however, on the current state of the ECHR case-law, as at the date of our Report, the bulk powers in the Bill are not inherently incompatible with the right to respect for private life, but are capable of being justified if they have a sufficiently clear legal basis, are shown to be necessary, and are proportionate in that they are accompanied by adequate safeguards against arbitrariness. Whether the powers have a sufficiently clear legal basis and the adequacy of the safeguards are closely intertwined questions on which the courts will rule in due course, and we do not express a view pending the determination of those legal challenges. (Paragraph 2.10)

5.We welcome the Government’s publication of a detailed operational case for the bulk powers in the Bill, providing more detail than ever before about why these powers are needed. This makes it possible for Parliament to scrutinise more carefully the Government’s case as to why such powers are necessary. However, for such scrutiny to be meaningful and effective, Parliament needs expert assistance. (Paragraph 2.12)

6.In our view, the Government’s operational case for the bulk powers should be assessed by the Independent Reviewer of Terrorism Legislation, who also has access to any supplementary sensitive information which the Government may wish to rely on in making the case for the necessity of the powers. The Independent Reviewer has already undertaken a comprehensive and well respected review of investigatory powers, but he has not had an opportunity to assess the operational case for the bulk powers. We note from media reports and comments made by the Shadow Home Secretary that the Government intends to ask him to do so, but at the date of finalising our Report the precise terms of the review had not been made public. (Paragraph 2.15)

7.We recommend that the Government’s Operational Case for the Bulk Powers in the Bill should be reviewed by the Independent Reviewer of Terrorism Legislation. We further recommend that the result of the review should be reported to Parliament before the Bill completes its passage, so that both Houses have an opportunity to take the results of the assessment into account before the Bill becomes law.
(Paragraph 2.16)

8.If the Government does not agree to our recommendation, we recommend that the Bill be amended to require the Secretary of State to appoint the Independent Reviewer to carry out such a review and to report to Parliament before the end of the year. There is also a case for periodic review of the continuing necessity for the bulk powers, as recommended by the former Director of Legal Affair at GCHQ. The following suggested amendment (adapted from section 7 of the Data Retention and Investigatory Powers Act 2014 which required the Secretary of State to appoint the Independent Reviewer to review the operation and regulation of investigatory powers) would give effect to this recommendation:

New clause

Page 172, line 9, before section 222 (Review of operation of Act) insert new clause:

NC ( ) Review of operational case for bulk powers

(1)The Secretary of State must appoint the independent reviewer of terrorism legislation to review the operational case for the bulk powers contained in Parts 6 and 7 of this Act.

(2)The independent reviewer must, in particular, consider the justification for the powers in the Act relating to—

(a) bulk interception,

(b) bulk acquisition,

(c) bulk equipment interference, and

(d) bulk personal datasets.

(3) The independent reviewer must, so far as reasonably practicable, complete the review before 30 November 2016.

(4) The independent reviewer must send to the Prime Minister a report on the outcome of the review as soon as reasonably practicable after completing the review.

(5) On receiving a report under subsection (4), the Prime Minister must lay a copy of it before Parliament together with a statement as to whether any matter has been excluded from that copy under subsection (6).

(6) If it appears to the Prime Minister that the publication of any matter in a report under subsection (4) would be contrary to the public interest or prejudicial to national security, the Prime Minister may exclude the matter from the copy of the report laid before Parliament.

(7) The Secretary of State may pay to the independent reviewer—

(a) expenses incurred in carrying out the functions of the independent reviewer under this section, and

(b) such allowances as the Secretary of State determines.

(8) The independent reviewer shall complete further reviews on a five-yearly basis and the provisions of this section other than subsection (3) shall apply

(9) In this section “the independent reviewer of terrorism legislation” means the person appointed under section 36(1) of the Terrorism Act 2006 (and “independent reviewer” is to be read accordingly).’

This amendment provides for an independent review of the operational case for the bulk powers in the Bill, and further periodic reviews, to be undertaken by the independent reviewer of terrorism legislation. (Paragraph 2.17)

Thematic warrants

9.We recognise the value of thematic warrants but we consider the Bill’s provisions concerning the possible subject matter of targeted interception and targeted equipment interference warrants to be too broadly drafted. (Paragraph 3.9)

10.We recommend that the Bill be amended so as to circumscribe the possible subject-matter of warrants in the way recommended by the Independent Reviewer: so as to ensure that the description in the warrant is sufficiently specific to enable the person unknown, but who is the subject of it, to be identified and to prevent the possibility of large numbers of people being potentially within the scope of a vaguely worded warrant. The following amendments are intended to give effect to this recommendation:

Clause 15

Page 12, line 8, after ‘activity’ insert ‘where each person is named or otherwise identified’

Page 12, line 11, after ‘operation’ insert ‘where each person is named or otherwise identified’

Clause 90

Page 68, line 26, after ‘activity’ insert ‘where each person is named or otherwise identified’

Page 68, line 29, after ‘operation’ insert ‘where each person is named or otherwise identified’

Page 68, line 45, after ‘activity’ insert ‘where each person is named or otherwise identified’

Page 68, line 47, after ‘operation’ insert ‘where each person is named or otherwise identified’

These amendments seek to make more specific the currently very broadly worded thematic warrants in the Bill, to make it more likely that such thematic warrants will be compatible with the requirements of Article 8 ECHR as interpreted by the European Court of Human Rights.(Paragraph 3.10)

Modifications

11.In our view, the power to make major modifications to warrants for targeted interception, without judicial approval, is so wide as to give rise to real concern that the requirement of judicial authorisation can be circumvented, thereby undermining that important safeguard against arbitrariness. (Paragraph 4.9)

12.We recommend that major modifications to warrants require approval by a Judicial Commissioner. The following amendment would give effect to this recommendation:

Clause 30

Page 24, line 46, insert new subsection:

‘(10A) Section 21 (Approval of warrants by Judicial Commissioners) applies in relation to a decision to make a major modification of a warrant by adding a name or description as mentioned in subsection (2)(a) as it applies in relation to a decision to issue a warrant; and accordingly where section 21 applies a Judicial Commissioner must approve the modification.’

This amendment seeks to ensure that major modifications of warrants require judicial approval.(Paragraph 4.10)

Communications of members of Parliament

13.We welcome the Bill’s recognition that there is a strong public interest in preserving the confidentiality of the communications of the members of legislative bodies. We also welcome the extension of protections to members of legislatures other than the Westminster Parliament. (Paragraph 5.7)

14.However, the requirement that the Prime Minister be consulted before the Secretary of State decides whether to issue a warrant for targeted interception or examination of members’ communications is not, in our view, a safeguard commensurate with the importance of the public interest at stake. (Paragraph 5.8)

15.We consider that the safeguard should reflect the particular nature of the important public interest at stake, which is providing a degree of protection for communications with members in their capacity as members of the legislature. (Paragraph 5.9)

16.We consider that the Speaker or Presiding Officer should be given sufficient prior notification of the decision to issue an interception or examination warrant, to enable the Speaker or Presiding Officer, if they so wished, to be represented at the hearing before the Judicial Commissioner, at which any representations could be made about matters such as the scope of the warrant, or the precision with which it specifies the matters subject to the warrant. Unlike the Wilson doctrine, this suggested amendment would give legal protection to communications with members of Parliament. (Paragraph 5.11)

17.We recommend the additional safeguard that the Speaker or Presiding Officer of the relevant legislature be given sufficient notice before the Secretary of State decides whether to issue a warrant for targeted interception or examination of members’ communications, to enable the Speaker or Presiding Officer to be represented at the hearing before the Judicial Commissioner. The following suggested amendment would give effect to this recommendation:

Clause 24

Page 19, line 8, after ‘consult the Prime Minister’ insert ‘and give sufficient notice to the relevant Presiding Officer of the relevant legislature to enable the relevant Presiding Officer to be heard at the hearing before the Judicial Commissioner’

Page 19, line 15, insert:

‘(4) In this section “the relevant Presiding Officer” means

the Speaker of the House of Commons

the Lord Speaker of the House of Lords

the Presiding Officer of the Scottish Parliament

the Presiding Officer of the National Assembly for Wales

the Speaker of the Northern Ireland Assembly

the President of the European Parliament.’

This amendment adds the safeguard of giving the Speaker, or other Presiding Officer, of the relevant legislature, sufficient notice before the Secretary of State decides whether to issue a warrant for targeted interception or examination of members’ communications, to enable the Speaker or Presiding Officer to be heard at the hearing before the Judicial Commissioner. (Paragraph 5.12)

Legal professional privilege

18.We welcome the Government’s positive response to pre-legislative scrutiny of the draft Bill by including specific provision about legal professional privilege on the face of the Bill. We accept that, for the purposes of human rights law, the protection of legal professional privilege is not an absolute, but can be overridden by sufficiently weighty public interest considerations, provided there are adequate safeguards against abuse. However, we query whether the safeguards for lawyer-client confidentiality in the Bill are as robust as they should be. (Paragraph 6.6)

19.In particular, we do not see the need for a power to target lawyer-client communications when communications which further a criminal purpose are not covered by legal privilege (the so-called “iniquity exception”). (Paragraph 6.7)

20.Nor do we consider that the Bill contains a sufficiently strong safeguard for legally privileged items which are likely to be included in intercepted communications, as it does not contain a threshold test which must be satisfied before a warrant for such interception can be issued. In our view, the “exceptional and compelling circumstances” test should apply to such a decision, reflecting the strong presumption against interfering with confidential communications between lawyer and client. (Paragraph 6.8)

21.We recommend that the power to target confidential communications between lawyers and clients be removed from the Bill because it is unnecessary in light of the iniquity exception: communications between lawyer and client which further a criminal purpose are not legally privileged. (Paragraph 6.9)

22.We further recommend that a warrant to intercept or examine communications which are likely to include items subject to legal professional privilege should only be issued if the person to whom the application for the warrant is made considers that there are exceptional and compelling circumstances that make it necessary to authorise the interception or examination. The following suggested amendments would give effect to these Recommendations:

Clause 25

Page 19, line 16, leave out subsections (1) to (3)

This amendment removes the power to apply for a warrant the purpose of which is to authorise the interception, or selection for examination, of items subject to legal privilege.

Page 19, line 44, leave out subsection (4)(c)

Page 20, line 7, in subsection (6) after ‘considers’ insert

‘(a) that there are exceptional and compelling circumstances that make it necessary to authorise the interception, or (in the case of a targeted examination warrant) the selection for examination, of items subject to legal privilege, and (b)’

These amendments introduce a threshold test for the interception or examination of communications likely to include items subject to legal privilege, reflecting the strong presumption against interference with lawyer-client confidentiality. (Paragraph 6.10)

Journalists’ sources

23.We welcome the changes made by the Government to the Bill in relation to the protection of journalists’ sources and the inclusion of safeguards in all of the draft Codes of Practice. We also recognise that there is a real difficulty about how to define “journalism” in the digital age. However, we share the concern of the Joint Committee on the draft Bill that the safeguard of independent review by a Judicial Commissioner provided in the Bill is inferior to the equivalent safeguard in PACE and the Terrorism Act 2000 because the hearing before the Commissioner will not be on notice. In our view, this gives rise to a risk of incompatibility with Article 10 ECHR. We accept that notification should not prejudice the investigation but consider that this can be dealt with by the wording of the clause. (Paragraph 7.11)

24.We recommend that the Bill should provide the same level of protection for journalists’ sources as currently exists in relation to search and seizure under the Police and Criminal Evidence Act 1984, including an on notice hearing before a Judicial Commissioner, unless that would prejudice the investigation. The following amendment would give effect to this recommendation:

Clause 68

Page 54, line 14, in subsection (4), before ‘required to give notice’ leave out ‘not’

Page 54, line 16, at end of subsection (4) insert ‘unless an application without such notice is required in order to avoid prejudice to the investigation.’

Page 54, line 16, after subsection (4) insert new subsection

‘( ) Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply to an application for an order under this section as if it were an application for an order under that Schedule.’

This amendment seeks to ensure that the same level of protection is provided for journalists’ sources under the Bill as is currently provided in PACE.
(Paragraph 7.12)

Oversight

25.In our view, bearing in mind that the adequacy of the oversight arrangements in the Bill will be an important part of the overall assessment of whether the safeguards satisfy the requirements of Article 8 ECHR, it would be highly desirable for there to be a clear functional separation between prior judicial authorisation and ex post inspection and review. We agree with the Independent Reviewer that this does not necessarily have to be carried out by entirely separate bodies. In our view, however, it should be carried out by different personnel. (Paragraph 8.8)

26.We recommend that, in the absence of an Investigatory Powers Commission, the necessary functional separation can be achieved by placing the Investigatory Powers Commissioner under a duty to ensure that the two distinct functions of authorisation and ex post inspection are carried out by different Commissioners. The following suggested amendment would give effect to this recommendation:

Clause 194

Page 149, line 36, after subsection (7) insert new subsection:

‘(7A) The Investigatory Powers Commissioner shall ensure that all judicial authorisation functions under this Act are carried out by different Commissioners from those who carry out the audit and inspection functions set out in this Part.’

This amendment requires the Investigatory Powers Commissioner to ensure the separation of the judicial authorisation function from the ex post audit and inspection function. (Paragraph 8.9)





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1 June 2016