Tenth Standing Committee on Delegated Legislation
Tuesday 18 June 2002
[Mr. David Amess in the Chair]
Draft Regulation of Investigatory Powers (Maintenance of Interception Capability) Order 2002
The Parliamentary Under-Secretary of State for the Home Department (Mr. Bob Ainsworth): I beg to move,
That the Committee has considered the draft Regulation of Investigatory Powers (Maintenance of Interception Capability) Order 2002.
The draft order was laid before Parliament on 22 May, and was made in exercise of the powers conferred on the Secretary of State by section 12(1), (2) and (5), and by section 78(5) of the Regulation of Investigatory Powers Act 2000.
Part I, chapter I of that Act updates the previous United Kingdom law that governs the interception of communications. It provides for, and regulates, powers to allow lawful interception of communications by law enforcement, security and intelligence agencies, consistent with the Human Rights Act 1998. It also creates a system of safeguards that reflect the requirements of article 8 of the European Convention on Human Rights.
In the UK, interception is conducted only under warrants authorised personally by the Secretary of State, and only where necessary in the interests of national security, preventing or detecting serious crime, or safeguarding the economic well-being of the UK. Safeguarding the economic well-being of the UK has been covered in guidance to avoid a wide interpretation of ''economic well-being'', but it amounts to a threat to the state equivalent to the item under ''national security''. Interception warrants are intelligence-gathering tools. The Regulation of Investigatory Powers Act prohibits material derived from the warrants from being adduced as evidence in court. The UK's lawful interception regime is subject to oversight by the Interception of Communications Commissioner.
Section 12 of the Regulation of Investigatory Powers Act contains a provision whereby the Secretary of State may require a communications service provider to maintain an interception capability and meet obligations for which an order provides. The draft order aims to fulfil that function. Its schedule lists the obligations that the Secretary of State believes it is, and will be, reasonable and practicable to impose on communications service providers in order that they meet the requirements to provide assistance in relation to interception warrants. For the purpose of the draft order, interception of communications means the interception of a communication in the course of its transmission through a postal or telecommunications system. The obligations under part I of the schedule apply to communications
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service providers who provide, or propose to provide, a public postal service. Subject to article 2(3) of the draft order, the obligations under part II of the schedule apply to communications service providers who provide, or propose to provide, a public telecommunications service.
The draft order was the subject of a lengthy public consultation from December 2000 to August 2001, and of extensive dialogue between the Government and industry. The Office of Telecommunications was also consulted. The European Commission considered a copy of the draft order in accordance with the European transparency directive.
I am pleased to announce that the Technical Advisory Board, known as TAB, has been established under the chairmanship of Mr. Liam Strong, who has considered and approved the draft order. TAB is a non-departmental public body provided for under section 13 of the Regulation of Investigatory Powers Act. Apart from the chairman, it comprises six Government and six industry representatives. Under section 12(10), the draft order requires approval by a resolution of each House. If approved, the draft order will take effect from 1 August 2002.
As set out in section 12(2), the power to impose obligations set out in the draft order shall be exercised by the giving of a notice, which requires a communications service provider subject to the obligation to take all such steps as may be specified or described, including those necessary to provide intercepted material to the relevant agencies, to maintain security and confidentiality and to facilitate and to carry out the functions of the Interception of Communications Commissioner. Under section 12(7), the CSP's duty to comply with the notice is enforceable in civil proceedings.
The Government intend that a notice given to a CSP will, wherever possible, have been the product of prior dialogue and agreement between the Government's representatives and the relevant CSP. Should a CSP consider that a notice is unreasonable in respect of the steps it is required to take to meet its obligations or of the financial consequences of those steps, the CSP can refer the notice to TAB. In accordance with section 12(5), the draft order makes provision for such a referral to be made within 28 days.
When a notice is referred, TAB will act as an independent assessor of its reasonableness and provide advice to the Secretary of State. After considering any report from TAB, the Secretary of State may either withdraw the notice or give further notice confirming its effect—with or without modifications.
The Government recognise CSPs' concerns about costs resulting from the obligations in the draft order. Section 14(2) places a duty on the Secretary of State to ensure that arrangements are in force for securing that CSPs receive a fair contribution to the costs incurred as a consequence of both the imposition of the obligations in the draft order and the issue of interception warrants.
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Through the intercepting agencies, the Government presently have agreements in place with all CSPs currently providing interception and pay a substantial contribution to the costs. Last year, CSPs received in excess of £14 million from the Government. The money is largely intended to pay the costs of giving effect to interception warrants, but it is also used to assist with the maintenance of an interception capability.
The Government intend to continue the existing arrangements until at least the end of this financial year, when they will seek to put in place a new regime that will more closely identify the costs arising from the issuing of warrants and from the maintenance of interception capability. Although the agencies will continue to contribute towards the former, the Home Office will contribute directly to the latter.
To develop a new costing regime, the Government will require considerable assistance and transparency from the industry. Officials have begun to consult widely, and it is hoped that the new regime—based, as intended, on constructive and open dialogue between Government and the industry—will be fair and accepted by all sectors of the communications industry.
In addition to continuing to make generous financial contributions to the CSPs that are already providing an interception capability, the Government will assist the CSPs that are required to establish a capability where one did not previously exist. During RIPA's passage through Parliament, £20 million was set aside over three financial years—2001–02, 2002–03 and 2003–04—primarily to assist with the costs of developing a capability for intercepting traffic transmitted as internet protocol. Government representatives at the National Technical Assistance Centre have been working with a number of CSPs to develop such a capability, and arrangements are being made to fund that work from the £20 million.
Norman Baker (Lewes): If I understood correctly, the Minister said in his interesting introduction that the Home Office would contribute annually to the maintenance of an interception capability for CSPs. Can he give an estimate of the annual cost to the taxpayer of supporting the maintenance of such a capability?
Mr. Ainsworth: I just said that £20 million had been set aside over three financial years. To have proper sight of what costs what and to ensure that we are fair with the industry, we propose that the costs of issuing the warrants will continue to be paid by the agencies that apply for them. If a security agency or the National Crime Squad asks for a warrant, it will pay the costs of issuing it. That money has also effectively been subsidising the provision of a capability. In principle, therefore, the Home Office should pick up the costs of providing the capability, and the agencies should continue to pay for individual warrants.
We must have the best sight that we can of what the costs are. As I hope I said, that is the purpose of the consultation that is taking place with the industry. We hope that the industry will be open with us, so that we can see exactly what the costs are of the capability that
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it is expected to provide, and so that we can ensure that the taxpayer is not paying unduly and perhaps also distorting the market. Equally, we must ensure that the CSP receives a fair contribution towards the costs being imposed on it of providing a capability. The desire is to separate the two issues: to leave the costs of issuing individual warrants to the agencies, and to pick up as a Home Office item the costs of providing in the first place, and maintaining, the capacity to make the intervention.
Mr. Dominic Grieve (Beaconsfield): I welcome you, Mr. Amess, to the Chair. I also welcome the Minister's remarks. This is the first of a number of orders under the Regulation of Investigatory Powers Act that we must consider, and I suspect that it will be the least contentious. Others may be relatively uncontentious, but each must be considered on its merits.
The draft order's objective is eminently sensible: RIPA contains a provision that places an obligation on service providers and the draft order defines it. It is probably sensible to say at this point that this is a mechanistic order that goes not to the issue of what should be intercepted, but to how it should be intercepted. The first test is whether the draft order is acceptable to the public service providers themselves. I believe, both from what the Minister has said and my own inquiries, that those in the industry who have had to liaise with the Government are satisfied with the Government's approach. However, there are perhaps a number of areas that we should examine and which he may be able to clarify.
The figure of one in 10,000 is given for the interception capability. What is the total available number of lines in this country? The Minister may have to give us a rough guide rather than an exact figure, but it would be useful to know the maximum interception capability under the draft order. Although one in 10,000 appears to be a small figure, I suspect that the total number of lines operating in the United Kingdom in one form or another is extremely large.
If the figure is substantial, I would be grateful if the Minister told us why that is thought necessary. Does it reflect the Government's view that, at any given moment, a huge number of interceptions will take place, or is there some other reason? My impression is that the number of interceptions that take place is not enormous, so I find a slight divergence between those two concepts. I would be grateful for his clarification.
The Minister touched on internet capability. It is probably ignorance on my part, but internet capability is not identified separately in the schedule. One assumes that it is simply contained in the generality of the public telecommunications services that stand to be intercepted. Is no further reference needed or are there problems relating to the interception of internet traffic that differ from those involved with the interception of telephone conversations? We have heard about the problems posed by internet interception, particularly in the field of encryption, so it would be helpful to know how those issues
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dovetail. Certainly, it was my understanding that the draft order covered that too.
On a fair contribution to costs, I am pleased that discussions continue as to how those contributions will evolve. Clearly it would be desirable for hon. Members to know, through a statement, a letter or a question, how the Government have resolved that issue, because it is live. There should be a contribution to the costs of the public telecommunications services and others. After all, their job is not to intercept people's communications; any such work is done at the Government's request and for a reason. Will the Minister assure us that we shall be kept informed if any difficulty arises during discussions with the industry and about what has been resolved when those discussions conclude?
I do not wish to take up too much of the Committee's time, but those are the key issues arising from the draft order. In a sense, it should be welcomed, as it is a good step to resolving satisfactorily the problem of how to undertake interception when it is needed. Subject to my points, the draft order seems to go a long way towards achieving that.